Defamation

Defamation is the general term for a legal claim involving injury to
one's reputation caused by a false statement of fact and includes both
libel (defamation in written or fixed form) and slander (spoken
defamation). The crux of a defamation claim is falsity. Truthful
statements that harm another's reputation will not create liability for
defamation (although they may open you up to other forms of liability
if the information you publish is of a personal or highly private nature).

Defamation in the United States is governed by state law. While
the U.S. Constitution sets some limits on what states can do in the
context of free speech, the specific elements of a defamation claim can
-- and often do -- vary from state to state. Accordingly, you should
consult your state's law in the State Law: Defamation section of this guide for specific information.

Generally speaking, a person who brings a defamation lawsuit must prove the following:

The defendant published the statement. In other
words, that the defendant uttered or distributed it to at least one
person other than the plaintiff. You don’t need to be a media mogul to
be a publisher. There is no requirement that the statement be
distributed broadly, to a large group, or even to the general public.
If you publish something on the Internet, you can assume that this
requirement has been met.

The statement is about the plaintiff. The statement
need not name the person explicitly if there is enough identifying
information that those who know the person will recognize the statement
as being about him or her. For more information, see the section on Who Can Sue For Defamation.

The statement harmed the reputation of the plaintiff,
as opposed to being merely insulting or offensive. Generally speaking,
a defamatory statement is a false statement of fact that exposes a
person to hatred, ridicule or contempt, lowers him in the esteem of his
peers, causes him to be shunned, or injures him in his business or
trade. For more information, see the section on What is a Defamatory Statement.

The statement was published with some level of fault.
Fault requires that the defendant did something he should not have done
or failed to do something he should have. Depending on the
circumstances, the plaintiff will either need to prove that the
defendant acted negligently, if the plaintiff is a private figure, or
with actual malice, if the plaintiff is a public figure or official.
The level of fault that must be proven is discussed in the Actual Malice and Negligence section of the legal guide.

The statement was published without any applicable privilege.
A number of privileges may be available depending on what the defendant
published and the source(s) he relied on for the information. For more
information, see the section on Defamation Privileges and Defenses in this guide.

In cases involving public officials, public figures or matters of
public concern, a plaintiff must prove that thestatement was false. In cases involving matters of purely
private concern, in many states the burden of proving truth is on the defendant. This is not to say that every detail you
publish must be perfectly accurate to avoid liability. If you get a few
minor details wrong, this will not necessarily negate the truth of what
you say so long as the statement at issue is substantially true. See
the section on Substantial Truth for more information.

Statements of pure opinion,
which cannot be proven true or false, cannot form the basis of a
defamation claim (e.g., a statement that Bill is a jerk, is clearly a
statement of opinion).

Keep in mind that the republication of someone else's defamatory
statement can itself be defamatory. In other words, you won't be immune
simply because you are quoting another person making the defamatory
statement, even if you properly attribute the statement to it's source.
For example, if you quote a witness to a traffic accident who says the
driver was drunk when he ran the red light and it turns out the driver
wasn't drunk and he had a green light, you can't hide behind the fact
that you were merely republishing the witness' statement (which would
likely be defamatory).

On the other hand, if you repeat what someone else said or
wrote in an official hearing or official document, there’s an important
privilege that may protect you provided you attribute the information
you gathered and are accurate in your reporting. See the section on Defamation Privileges and Defenses for information on this, and other, privileges.

In most states, the plaintiff must also prove that the
defamatory statement caused him or her actual damage. Actual damages
include such things as the loss of a job because of the defamatory
statement, but can also include mental anguish or suffering associated
with the defamation. Some jurisdictions also recognize "per se"
defamation, where damage is presumed if the defamatory statement
relates to one of the following subjects:

Impugns a person's professional character or standing;

States or implies that an unmarried person is unchaste (e.g., is sexually active);

States or implies that a person is infected with a sexually transmitted disease; or

States or implies that the person has committed a crime of moral turpitude (e.g., theft or fraud).

See the State Law: Defamation section of this guide for specific information on what each state recognizes.

If a plaintiff succeeds in proving defamation, he or she is entitled
to recover what is called compensatory damage, which is the payment of
money to compensate the plaintiff for the wrong that has been done.
This includes not only out-of-pocket expenses (e.g., doctor's bills),
but also personal humiliation, mental anguish and suffering, and lost
wages and benefits if the defamation caused the plaintiff to lose
employment. In limited circumstances, a plaintiff may also be able to
recover punitive damages, which are awarded in addition to compensatory
damages and are intended to punish the defendant.

Note that some states require that a plaintiff must first ask
the defendant to correct or remove the defamatory statement in order to
be entitled to certain types of damages. See the section on Correcting or Retracting Your Work After Publication for more information.

Parallel Legal Claims Based on Allegedly False Statements

It is common for defamation plaintiffs to assert not only a claim for defamation, but also claims for infliction of emotional distress, interference with business relationships, etc., arising out of the same allegedly false statements. These parallel claims will ordinarily be subject to the same limitations, privileges and defenses as the main defamation claim. For more information, see our section on Other Falsity-Based Legal Claims.

Jurisdiction:

Subject Area:

Other Falsity-Based Legal Claims

As discussed elsewhere in this guide, there are substantial privileges and defenses available to defendants in defamation actions. The First Amendment and related state law doctrines that protect speech often present insurmountable obstacles for defamation plaintiffs. In response, plaintiffs often attempt to evade rather than overcome these obstacles by relabeling their defamation claims as another form of legal claim.

In lawsuits based upon allegedly false speech, it is common for plaintiffs to include a wide variety of ancillary claims in addition to their main defamation claim. Common additional claims include:

Intentional or negligent infliction of emotional distress

Tortious interference with contract or business relations

"False light" invasion of privacy

Unfair or deceptive trade practices

Fraud or misrepresentation

State or federal civil rights act violations

Conspiracy to commit defamation

Each of these claims has its own elements and defenses, which an attorney can assist you to understand (see especially our section on "false light" claims). However, a number of courts, including the United States Supreme Court, have raised additional concerns when such claims are premised upon allegations that the defendant published a false statement that damaged the plaintiff's reputation -- i.e., the classic defamation lawsuit fact pattern.

In Hustler Magazine, Inc. v. Falwell, 485 U.S. 46 (1988), the U.S. Supreme Court considered claims brought against Hustler Magazine by high-profile preacher and pundit Jerry Falwell arising out of a parody ad that ran in the magazine. The claims based on the parody ad included defamation and intentional infliction of emotional distress; a jury decided in Hustler's favor on the defamation claim, but awarded damages to Falwell on the emotional distress claim. The Supreme Court reversed the jury verdict for Falwell on the emotional distress claim, invoking constitutional standards applied in defamation cases to do so. Rejecting as irrelevant the distinction that emotional distress cases are concerned with an intent to injure feelings rather than reputation, id. at 52-53, the Court held that the First Amendment standards stated in the defamation case of New York Times Co. v. Sullivan were equally applicable to Falwell's emotional distress claims as an essential protection for free speech. Id. at 53-56. Because Falwell had failed to prove "a false statement of fact which was made with 'actual malice,'" the Court held that he was not entitled to recover damages for emotional distress. Id. at 56-57.

Subsequently, other courts have held that plaintiffs cannot evade constitutional and state law privileges and defenses for speech by recasting their defamation claims as different theories of tort. See, e.g., Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003) ("[A] plaintiff cannot evade the protections of the fair report privilege merely by re-labeling his claim."); Tierney v. Vahle, 304 F.3d 734, 743 (7th Cir. 2002) ("To evade the constitutional limitations on defamation suits by charging the alleged defamer with participation in a conspiracy, which is to say just by relabeling the tort, cannot be permitted."); Chaiken v. VV Pub. Corp., 119 F.3d 1018, 1034 (2nd Cir. 1997) ("[T]he Chaikens cannot avoid the obstacles involved in a defamation claim by simply relabeling it as a claim for intentional infliction of emotional distress."); Brown v. Hearst Corp., 54 F.3d 21, 27 (1st Cir. 1995) ("it is not imaginable that [a false light claim] could escape the same constitutional constraint as [a] defamation claim"); Beverly Hills Foodland, Inc. v. United Food and Commercial Workers Union, Local 655, 39 F.3d 191, 196 (8th Cir. 1994) ([T]he malice standard required for actionable defamation claims during labor disputes must equally be met for a tortious interference claim based on the same conduct or statements. This is only logical as a plaintiff may not avoid the protection afforded by the Constitution ... merely by the use of creative pleading."); see also Correllas v. Viveiros,
410 Mass. 314, 324 (1991) ("A privilege which protected an individual
from liability for defamation would be of little value if the individual
were subject to liability under a different theory of tort.").

Therefore, if a plaintiff brings a variety of claims against you based upon allegedly false statements, you might be able to rely upon both defenses to the particular claims asserted as well as First Amendment and state law defenses to defamation (whether or not the plaintiff actually includes a specific defamation claim in his complaint).

On the other hand, it is unlikely that defamation defenses would apply to claims based upon true speech, such as publication of private facts, or intellectual property claims, such as trademark infringement or violations of the right of publicity. However, these claims are not related to injury to personal reputation; rather, they involve revelation of private information (for a private facts claim), damage to a brand or business (for a trademark claim), or misappropriation of the commercial value of one's name (for a right of publicity claim). If it appears that a plaintiff is attempting to use one of these theories of liability to sue you for damage to his or her individual reputation from an allegedly false statement, you probably would have a strong argument that such theories are simply inapplicable. Rather, the plaintiff would have to proceed instead on a defamation claim (with all of the burdens placed upon the plaintiff in such a case).

Jurisdiction:

Subject Area:

Who Can Sue For Defamation

In order to be actionable, a defamatory statement must be "of and
concerning" the plaintiff. This means that a defamation plaintiff must
show that a reasonable person would understand that the statement was
referring to him or her. Of course, if a blog post or online article
identifies the plaintiff by name, this requirement will be easily met.
The plaintiff need not be specifically named, however, if there are
enough identifying facts that any (but not necessarily every) person
reading or hearing it would reasonably understand it to refer to the
plaintiff. For example, a statement that "a local policeman who
recently had an auto accident had been seen drinking alcohol while on
duty" would likely be actionable because the policeman could be
identified based on his recent accident.

Group Libel

Accordingly, defamatory statements about a group or class of
people generally are not actionable by individual members of that group
or class. There are two exceptions to this general rule that exist when:

the group or class is so small that the statements are reasonably understood to refer to the individual in question; or

the circumstances make it reasonable to conclude that the statement refers particularly to the individual in question.

See Restatement (2d) of Torts, § 564A (1977).

As to the first exception -- statements about a small group --
courts have often held that an individual group member can bring a
claim for defamation for statements directed at a group of 25 or fewer
people. The 25-person line is not a hard-and-fast rule, but rather the
way courts commonly distinguish between a group small enough for
statements about the whole group to be imputed to individual members
and one that is too large to support such an imputation.

The case of Neiman-Marcus v. Lait, 13 F.R.D. 311 (S.D.N.Y.
1952), provides a good illustration of this general rule. In that case,
the defendants wrote that "most of the [Neiman-Marcus] sales staff are
fairies" and that some of the company's saleswomen were "call girls."
Fifteen of the 25 salesmen and 30 of the 382 saleswomen at the store
brought suit for defamation. Applying New York and Texas law, the court
held that the salesmen had a valid cause of action, but the saleswomen
did not. Even though the statement referred to "most of" the salesmen,
without naming names or specifying further, the statement could be
understood to refer to any individual member of this small group. The
group of saleswomen, however, was so large that a statement that some
of them were "call girls" would not be understood as referring to any
individual member of the group.

As to the second exception to the rule against group libel --
when circumstances point to a particular individual -- courts have
allowed defamation claims where the statement is facially broad, but
the context makes it clear that it referred to the plaintiff. For
example, Bill Blogger may be able to claim defamation based on the
statement "all bloggers who attended the most recent city council
meeting payed bribes to the mayor," where Bill is the only blogger who
attended the meeting and readers will therefore understand the
statement as being a thinly veiled indictment of him.

A company or organization can be a defamation plaintiff. In
fact, the largest jury verdict every awarded in a libel case
came in a case brought by a business plaintiff.

Note that each state decides what is required to establish defamation, so you should review your state's specific law in the State Law: Defamation section of this guide for more information.

Fictional Works

A person may claim defamation by a literary or dramatic work
intended as fictional if the characters in the work resemble actual
persons so closely that it is reasonable for readers or viewers to
believe that the character is intended to portray the person in
question. A disclaimer that the work is fiction and does not depict any
persons living or dead will not automatically foreclose a defamation
claim, but it is still a good idea and may be used as evidence as to
whether readers or viewers would be reasonable in concluding that it is
a depiction of the plaintiff.

Jurisdiction:

Subject Area:

What is a Defamatory Statement

A defamatory statement is a false statement of fact that exposes a
person to hatred, ridicule, or contempt, causes him to be shunned, or
injures him in his business or trade. Statements that are merely
offensive are not defamatory (e.g., a statement that Bill smells badly
would not be sufficient (and would likely be an opinion anyway)).
Courts generally examine the full context of a statement's publication
when making this determination.

In rare cases, a plaintiff can be “libel-proof”, meaning he or
she has a reputation so tarnished that it couldn’t be brought any
lower, even by the publication of false statements of fact. In most
jurisdictions, as a matter of law, a dead person has no
legally-protected reputation and cannot be defamed.

Defamatory statements that disparage a company's goods or
services are called trade libel. Trade libel protects property rights,
not reputations. While you can't damage a company’s "reputation," you
can damage the company by disparaging its goods or services.

Because a statement must be false to be defamatory, a statement of opinion
cannot form the basis of a defamation claim because it cannot be proven
true or false. For example, the statement that Bill is a short-tempered
jerk, is clearly a statement of opinion because it cannot be proven to
be true or false. Again, courts will look at the context of the
statement as well as its substance to determine whether it is opinion
or a factual assertion. Adding the words "in my opinion" generally will
not be sufficient to transform a factual statement to a protected
opinion. For example, there is no legal difference between the
following two statements, both of which could be defamatory if false:

Some statements of fact are so egregious that they will always
be considered defamatory. Such statements are typically referred to as
defamation "per se." These types of statements are assumed to harm the
plaintiff's reputation, without further need to prove that harm.
Statements are defamatory per se where they falsely impute to the
plaintiff one or more of the following things:

a criminal offense;

a loathsome disease;

matter incompatible with his business, trade, profession, or office; or

serious sexual misconduct.

See Restatement (2d) of Torts, §§ 570-574. Keep in mind that each
state decides what is required to establish defamation and what
defenses are available, so you should review your state's specific law
in the State Law: Defamation section of this guide for more information.

It is important to remember that truth is an absolute defense to
defamation, including per se defamation. If the statement is true, it
cannot be defamatory. For more information see the section on Substantial Truth.

Subject Area:

Proving Fault: Actual Malice and Negligence

Unlike other countries that hold a publisher liable for every
defamatory statement regardless of what steps he or she took prior to
publication, under U.S. law a plaintiff must prove that the defendant
was at fault when she published the defamatory statement. In other
words, the plaintiff must prove that the publisher failed to do
something she was required to do. Depending on the circumstances, the
plaintiff will either need to prove that the defendant acted
negligently, if the plaintiff is a private figure, or with actual
malice, if the plaintiff is a public figure or official.

Celebrities, politicians, high-ranking or powerful government
officials, and others with power in society are generally considered
public figures/officials and are required to prove actual malice.
Unlike these well-known and powerful individuals, your shy neighbor is
likely to be a private figure who is only required to prove negligence
if you publish something defamatory about her. Determining who is a
public or private figure is not always easy. In some instances, the
categories may overlap. For example, a blogger who is a well-known
authority on clinical research involving autism may be considered a
public figure for purposes of controversies involving autism, but not
for other purposes.

We discuss both of these standards and when they apply in this section.

Actual Malice

In a legal sense, "actual malice" has nothing to do with ill will or
disliking someone and wishing him harm. Rather, courts have defined
"actual malice" in the defamation context as publishing a statement
while either

knowing that it is false; or

acting with reckless disregard for the statement's truth or falsity.

It should be noted that the actual malice standard focuses on the defendant's actual state of mind at the time of publication.
Unlike the negligence standard discussed later in this section, the
actual malice standard is not measured by what a reasonable person
would have published or investigated prior to publication. Instead, the
plaintiff must produce clear and convincing evidence that the defendant
actually knew the information was false or entertained serious doubts
as to the truth of his publication. In making this determination, a
court will look for evidence of the defendant's state of mind at the
time of publication and will likely examine the steps he took in
researching, editing, and fact checking his work. It is generally not
sufficient, however, for a plaintiff to merely show that the defendant
didn't like her, failed to contact her for comment, knew she had denied
the information, relied on a single biased source, or failed to correct
the statement after publication.

Not surprisingly, this is a very difficult standard for a
plaintiff to establish. Indeed, in only a handful of cases over the
last decades have plaintiffs been successful in establishing the
requisite actual malice to prove defamation.

The actual malice standard applies when a defamatory statement
concerns three general categories of individuals: public officials,
all-purpose public figures, and limited-purpose public figures. Private
figures, which are discussed later in this section, do not need to
prove actual malice.

Public Officials

The "public officials" category includes politicians and
high-ranking governmental figures, but also extends to government
employees who have, or appear to the public to have, substantial
responsibility for or control over the conduct of government affairs.
Courts have interpreted these criteria broadly, extending the public
figure classification to civil servants far down the government
hierarchy. For example, the supervisor of a county recreational ski
center was held to be a "public official" for purposes of defamation
law. See Rosenblatt v. Baer,
383 U.S. 75 (1966). Some courts have even extended the protection to
all individuals engaged in matters of public health, such as hospital
staff, given the importance of health issues for the general public.
See Hall v. Piedmont Publishing Co., 46 N.C. App. 760, 763 (1980).

In general, if an individual is classified as a public
official, defamatory statements relating to any aspects of their lives
must meet the actual malice standard of fault for there to be
liability. Moreover, even after passage of time or leaving office,
public officials must still meet the actual malice standard because the
public has a continued interest in the misdeeds of its leaders.

Public Figures

There are two types of "public figures" recognized under
defamation law: "all-purpose" public figures and "limited-purpose"
public figures.

All-purpose public figures are private individuals who occupy
"positions of such persuasive power and influence that they are deemed
public figure for all purposes. . . . They invite attention and
comment." Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1972). For these individuals, the actual malice standard extends to virtually all aspects of their lives.

This category includes movie stars, elite professional athletes,
and the heads of major corporations. Tom Cruise is one; that character
actor you recognize instantly but can't quite name is probably not an
all-purpose public figure.

As with public officials, the passage of time does not cause
this class of individuals to lose their public figure status as long as
the original source of their fame is of continued interest to the
public.

Limited-Purpose Public Figures

The second category of public figures is called
"limited-purpose" public figures. These are individuals who "have
thrust themselves to the forefront of particular controversies in order
to influence the resolution of the issues involved." Gertz v. Robert Welch Inc.,
418 U.S. 323 (U.S. 1974). They are the individuals who deliberately
shape debate on particular public issues, especially those who use the
media to influence that debate.

This category also includes individuals who have distinguished
themselves in a particular field, making them "public figures"
regarding only those specific activities. These limited-purpose public
figures are not the Kobe Bryants, who are regarded as all-purpose
public figures, but rather the journeymen basketball players of the
league.

For limited-purpose public figures, the actual malice standard
extends only as far as defamatory statements involve matters related to
the topics about which they are considered public figures. To return to
our basketball example, the actual malice standard would extend to
statements involving the player's basketball career; however, it would
not extend to the details of his marriage.

As regards figures who become prominent through involvement in
a current controversy, the law is unfortunately rather murky. In
general, emphasis is placed not on whether the controversy is a subject
of public interest, but rather:

The depth of the person's participation in the controversy.

The amount of freedom he or she has in choosing to engage in
the controversy in the first place (e.g., if they were forced into the
public light). See Wolston v. Reader's Digest Association, 443 U.S. 157 (1979).

Whether he has taken advantage of the media to advocate his cause. See Time, Inc. v. Firestone, 424 U.S. 448 (U.S. 1976).

Keeping in mind the difficulty of making the determination of who is
a limited-purpose public figure, we've collected the following cases
which might be helpful. Courts have found the following individuals to
be limited-purpose public figures:

A retired general who advocated on national security issues. See Secord v. Cockburn, 747 F.Supp. 779 (1990).

Individuals who are considered to be limited-purpose public figures
remain so as long as the public has an "independent" interest in the
underlying controversy. Unlike all-purpose public figures, it is
relatively easy for a limited-purpose public figure to lose his status
if the controversy in which he is involved has been largely forgotten.
But most will still maintain their status. For example, a woman who had
publicly dated Elvis Presley over a decade earlier, but who had since
married and returned to "private" life, was found to remain a public
figure for stories related to her relationship with Presley. See Brewer v. Memphis Publishing Co., 626 F.2d. 1238 (5th Cir. 1980).

Evaluating Public Officials, Public Figures, and Limited-Purpose Public Figures

A public official is a person who holds a position of authority in the government and would be of interest to the public even if the controversy in question had not occurred.

The actual malice standard extends to statements touching on virtually any aspect of the public official's life.

Even after passage of time or leaving office, public
officials must still meet the actual malice standard because the public
has a continued interest in the misdeeds of its leaders.

All-purpose public figures are those whose fame reaches widely and pervasively throughout society.

The actual malice standard extends to statements involving virtually any aspect of their private lives.

Passage of time does not affect their status as public
figures as long as the source of their fame is of continued interest to
the public.

A limited-purpose public figure is either:

One who voluntarily becomes a key figure in a particular controversy, or

One who has gained prominence in a particular, limited field, but whose celebrity has not reached an all-encompassing level.

The actual malice standard applies only to subject
matter related to the controversy in question or to the field in which
the individual is prominent, not to the person's entire life.

Passage of time does not affect an individual who has
achieved fame through participation in a controversy as long as the
public maintains an "independent" interest in the underlying
controversy.

Defining who is a public figure for purposes of First Amendment
protections is a question of federal constitutional law, and therefore
the federal courts say on the matter is decisive and binding on state
courts. Accordingly, state courts cannot remove public-figure status from those who have been deemed public figures by the federal courts, but states can
broaden the scope of the the classification. For example, while the
Supreme Court has not spoken on the status of educators, most states
have recognized teachers as a class of public figures. But some states,
for example California, have not done so. Consult your State Law: Defamation section for specific guidelines on your jurisdiction.

Negligence Standard and Private Figures

Those who are not classified as public figures are considered
private figures. To support a claim for defamation, in most states a
private figure need only show negligence by the publisher, a much lower
standard than "actual malice." Some states, however, impose a higher
standard on private figures, especially if the statement concerns a
matter of public importance. You should review your state's specific
law in the State Law: Defamation section of this guide for more information.

A plaintiff can establish negligence on the part of the
defendant by showing that the defendant did not act with a reasonable
level of care in publishing the statement at issue. This basically
turns on whether the defendant did everything reasonably necessary to
determine whether the statement was true, including the steps the
defendant took in researching, editing, and fact checking his work.
Some factors that the court might consider include:

the amount of research undertaken prior to publication;

the trustworthiness of sources;

attempts to verify questionable statements or solicit opposing views; and

Jurisdiction:

Subject Area:

Examples of Public and Private Figures

Review this list of examples to help understand the difference between public figures/officials, limited-purpose public figures, and private figures for purposes of defamation law.

Name

Type

Town
Mayor

Public
Official(A mayor is an elected official and therefore is a public official for
purposes of defamation law.)

George
W. Bush

Public
Official(The President of the United States is an elected official and therefore
is a public official for purposes of defamation law.)

Laura
Bush

Public
Figure(The President’s wife is a person who has pervasive power and influence in
society and is therefore a public figure for purposes of defamation law.)

Paris
Hilton

Public
Figure(Well-known celebrities have pervasive power and influence in society and
are therefore public figures for purposes of defamation law.)

Bill
Gates

Public
Figure(As the head of a major corporation and one of the richest men in the
world, Bill Gates is a public figure for purposes of defamation law.)

Roger
Clemens

Public
Figure or Limited-Purpose Public Figure(Roger Clemens is a well-known
athlete and likely to be considered a public figure; at a minimum, he would
be a limited-purpose public figure as to issues involving sports.)

Local
expert on teen suicide

Limited-Purpose
Public Figure(The expert would be a limited-purpose public figure because she has
distinguished herself in this particular field.)

Church
pastor who decries abortion

Limited-Purpose
Public Figure(The pastor would be a limited-purpose public figure because he thrust
himself to the forefront of a particular controversy in order to influence
the resolution of the issue.)

Local
grocery store manager

Private
Figure(Individuals who do not qualify as public officials/figures or
limited-purpose public figures are private figures.)

Your shy neighbor

Private figure(Individuals who do not qualify as public officials/figures or
limited-purpose public figures are private figures.)

Jurisdiction:

Subject Area:

Defamation Privileges and Defenses

As a general rule, if you follow good journalistic practices and standards
-- being thorough, fair, and accurate in what you publish, carefully
attributing your sources and quotes, and not phrasing statements in
such a way as to create implications that you do not intend or do not
have the evidence to support -- this will minimize the likelihood that
you will be successfully sued for defamation (honing these good habits
has other benefits as well, as they will make your work more accurate
and credible).

There are times, however, when even the most careful publisher
can be sued for defamation. In such a situation, a number of defenses
may be available to you depending on what you published and the
source(s) you relied on for the information. The most important defense
is "truth." If the statement at issue is substantially true,
a defamation claim cannot succeed because you have a right to publish
truthful information even if it injures another's reputation. But truth
is not the only defense that may be available. For example, if you
publish a defamatory allegation made by a party in a lawsuit, even if
it turns out that the allegation is false, a defamation claim against
you cannot succeed because you have a right to report on allegations made in court
regardless of whether they are true. Similarly, statements by
legislators on the floor of the legislature, or by judges while sitting
on the bench are typically privileged and cannot support a cause of
action for defamation, even if they turn out to be false.

Sometimes the reliance on these sources may result in the
publication of defamatory falsehoods, but in publishing the information
you are performing the vital civic function of making information
available to the public and of playing a watchdog role with regard to
the government and other interests in society. To deal with the tension
between the possibility of defaming individuals and the importance of
reporting the news and information in a timely manner, courts have
developed a number of defenses which often called "privileges" by
lawyers. Keep in mind, however, the privileges described below are not
available in all circumstances or in every state, so you should also
review your state's specific law in the State Law: Defamation section of this guide.

Possible privileges and defenses include:

Substantial Truth:
"Truth" is an absolute defense to an action for defamation. Even if you
are not sure that what you've published is true, you should read this
section.

Opinion and Fair Comment Privileges:
Statements of opinion generally cannot support a cause of action for
defamation, even if they are outrageous or widely off the mark. A
defense similar to opinion is "fair comment on a matter of public
interest." If the mayor is alleged to be involved in a corruption
scandal, expressing your opinion that you believe the allegations are
true is not likely to support a cause of action for defamation.

Fair Report Privilege:
This very important privilege may apply if you relied on a public
document or a statement by a public official for the incorrect
information, made clear that the public document or statement was your
source, and fairly and accurately used the source.

Neutral Reportage Privilege:
The neutral reportage privilege covers unverified accusations made by
one public figure about another on a matter of legitimate public
interest, such as when a politician who opposes a health care bill says
that the bill's sponsor is taking money from the pharmaceutical
industry.

Wire Service Defense:
If you republish information from a reputable news source (such as the
Associated Press) you may be entitled to the wire service defense if it
turns out that the information was false.

Statute of Limitations:
If the plaintiff has waited too long to file a lawsuit, the defamation
claim might be barred by the statute of limitations, which sets the
maximum amount of time plaintiffs can wait before bringing a lawsuit
after the events they are suing over have occurred.

Substantial Truth

"Truth" is an absolute defense against defamation. See New York Times Co. v. Sullivan, 376 U.S. 254 (1964), and Time Inc. v. Hill,
385 U.S. 411 (1967). Consequently, a plaintiff has to provide convincing
evidence of a defamatory statement's falsity in order to prove
defamation.

The law does not require that a statement must be perfectly
accurate in every conceivable way to be considered "true." Courts have
said that some false statements must be protected for the wider purpose
of allowing the dissemination of truthful speech. The resulting
doctrine is known as "substantial truth." Under the substantial truth
doctrine, minor factual inaccuracies will be ignored so long as the
inaccuracies do not materially alter the substance or impact of what is
being communicated. In other words, only the "gist" or "sting" of a
statement must be correct.

The substantial truth defense is particularly powerful because
a judge will often grant summary judgment in favor of a defendant (thus
disposing of the case before it goes to trial) if the defendant can
show that the statement the plaintiff is complaining about is
substantially true, making the defense a quick and relatively easy way
to get out of a long (and potentially expensive) defamation case.

Substantial truth can also be a flashpoint for libel cases involving public figures and officials who must show actual malice by the defendant in order to recover. In Masson v. New Yorker Magazine,
501 U.S. 496 (1991), the plaintiff tried to argue that inaccurate
quotations were evidence of actual malice. The Supreme Court refused to
adopt such a stringent rule, noting the difficulty of taking notes and
translating from recordings and the need to edit a speaker's comments
into a coherent statement. The Court stated:

We conclude that a deliberate alteration of the words uttered
by a plaintiff does not equate with knowledge of falsity for purposes
of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc., unless the alteration results in a material change in the meaning conveyed by the statement. (citations omitted)

The Court went on to note the use of quotation marks to directly
attribute inaccurate statements to the speaker "bears in a most
important way on [this] inquiry, but it is not dispositive in every
case." Generally speaking, a publisher is given more leeway for
inaccuracies when he is interpreting his sources than when he is
purporting to be providing a "direct account of events that speak for
themselves." Time, Inc. v. Pape, 401 U.S. 279 (1971).

Some examples of statements that courts have found to be "substantially true":

A statement that a boxer tested positive for cocaine, when
actually he had tested positive for marijuana. See Cobb v. Time Inc. 24
Media L. Rep. 585 (M.D. Tenn 1995).

A statement that an animal trainer beat his animals with
steel rods, when actually he had beaten them with wooden rods. See
People for Ethical Treatment of Animals v. Berosini, 895 P.2d 1269
(Nev. 1995).

A statement that a father sexually assaulted his
stepdaughter 30-50 times, when the stepdaughter testified he had done
so only 8 times. See Koniak v. Heritage Newspapers, Inc., 198 Mich.
App. 577 (1993).

A statement that a man was sentenced to death for six
murders, when in fact he was only sentenced to death for one. See
Stevens v. Independent Newspapers, Inc., 15 Media L. Rep. 1097 (Del.
Super. Ct. 1998).

A statement that Terry Nichols was arrested after the
Oklahoma City Bombing, when actually he had only been held as a
material witness. See Nichols v. Moore, 396 F. Supp. 2d 783 (E.D. Mich. 2005).

A statement that a man was charged with sexual assault, when
actually he had only been arrested but not arraigned. See Rouch v.
Enquirer & News of Battle Creek, 440 Mich. 238 (1992).

Jurisdiction:

Subject Area:

Opinion and Fair Comment Privileges

The right to speak guaranteed by the First Amendment to the U.S.
Constitution includes the right to voice opinions, criticize others,
and comment on matters of public interest. It also protects the use of
hyperbole and extreme statements when it is clear these are rhetorical
ploys. Accordingly, you can safely state your opinion that others are
inept, stupid, jerks, failures, etc. even though these statements might
hurt the subject's feelings or diminish their reputations. Such terms
represent what is called "pure opinions" because they can't be proven
true or false. As a result, they cannot form the basis for a defamation
claim.

This is not to say that every statement of opinion is
protected. If a statement implies some false underlying facts, it could
be defamatory. For example, stating that "in my opinion, the mayor
killed her husband" is not likely to be a protected opinion. Couching
false statements of fact as opinion or within quotes from other sources
generally won’t protect you either. Nor will trying to cover yourself
by saying that a politician “allegedly” is a drug dealer, or that your
neighbor said the politician “is a drug dealer,” or that in your
opinion, the politician is a drug dealer. A reader may well assume you
have unstated facts to base your conclusion on, and it would be a
defamatory statement if the implied facts turn out to be false.

All opinions that rely on underlying facts, however, are not
necessarily outside the opinion privilege. If you state the facts on
which you are basing your opinion, and the opinion you state could be
reasonably drawn from those truthful facts, you will be protected even
if your opinion turns out to be incorrect. For example, if you were to
say "In my opinion, Danielle is failing out of school" it would likely
lead your readers to assume that there are some unstated facts you
relied on to draw your conclusion. Such a statement would not be
protected, as the privilege does not protect back door entry of facts
as "opinion" through innuendo. On the other hand, if you state "In my
opinion, Danielle is failing out of school because she is a blond and
the only thing I ever see her do at the library is check Facebook,"
this provides the reader with the information you are basing the
opinion on, and allows the reader to come to his own conclusion.

Compare the following two statements:

"During the last six months I've seen Carol in her backyard
five times at around 1:30pm on a weekday seated in a deck chair with a
beer in her hand. I think Carol must be an alcoholic."

"I think Carol must be an alcoholic."

The first example states true, non-defamatory facts upon which a
reasonable conclusion (that Carol is an alcoholic) is based, and also
emphasizes the limits of your knowledge (that you only saw Carol five
times). It would be protected as a statement of opinion. Under the
second example, readers would likely assume that there are unstated,
defamatory facts upon which your conclusion is based. Therefore it
would likely fall outside of the privilege.

Keep in mind that even if you state the facts you are relying
on for your opinion, but those facts turn out to be false, the
privilege will not apply. For example, if you say that "In my opinion,
Danielle is failing out of school because she failed biology," the
privilege would not apply if she got a C in biology.

To determine whether a statement is an opinion or a fact,
courts will generally look at the totality of the circumstances
surrounding the statement and its publication to determine how a
reasonable person would view the statement. Under this test, the
difference between an opinion and a fact often comes down to a
case-by-case analysis of the publication's context.

Distinguishing Between Statements of Fact and Opinion

In general, facts are statements that can be proven true or
false; by contrast, opinions are matters of belief or ideas that cannot
be proven one way or the other. For example, "Chris is a thief" can be
proven false by showing that throughout his entire life Chris never
stole anything. Compare that statement with "Chris is a complete
moron." The latter is an opinion (or, technically, "a pure opinion"),
as what constitutes a moron is a subjective view that varies with the
person: one person's moron is not necessarily the next person's moron.
Put another way, there would be no way to prove that Chris is not a
moron. If a statement is a "pure opinion," it cannot be the basis for a
defamation claim.

Of course, it is not always easy to determine whether a
statement is a pure opinion. As we noted above, opinions that imply
false underlying facts will not be protected. For example, stating that
"Chris is insane" could be both a fact and an opinion. It could mean
Chris has been diagnosed with psychosis and needs to be hospitalized in
a mental institution; this could be proven false. It could also mean
that Chris has wacky ideas that one doesn't agree with, which is an
opinion. In determining which meaning the statement should be given,
courts often rely on context and common-sense logic (or to phrase it in
legalese, the "totality of circumstances" of the publication). For
example, if one called Chris insane in a forum post as part of a heated
argument over politics, the statement would likely be interpreted as an
opinion.

Some examples of protected opinions include the following:

Statements in the "Asshole of the Month" column in Hustler
magazine that described a feminist leader as a "pus bloated walking
sphincter," "wacko," and someone who suffers from "bizarre paranoia"
were protected opinion because the context of the magazine and column
made it clear that the statements were "understood as ridicule or
vituperation" and "telegraph to a reader that the article presents
opinions, not allegations of fact." Leidholdt v. L.F.P. Inc., 860 F.2d 890 (9th Cir. 1988).

Statement in the New York Post that referred to the plaintiff
as a "fat, failed, former sheriff's deputy" was protected opinion
because it was hyperbole and had an "alliterative quality" with a
"rhetorical effect indicative of a statement of opinion." Jewell v. NYP
Holdings, Inc., 23 F. Supp.2d 348 (S.D.N.Y. 1998).

Statements on a radio talk show that described the plaintiff
as a "chicken butt," "local loser" and "big skank" were not defamatory
because they were "too vague to be capable of being proven true or
false" and had "no generally accepted meaning." Seelig v. Infinity Broadcasting, 97 Cal. App. 4th 798 (Cal. Ct. App. 2002).

A cartoon of a noted evangelist leader fornicating drunk in
an outhouse with his mother because the parody was so outrageous it
could not "reasonably be understood as describing actual facts" about
Falwell or events in which he participated. Hustler Magazine v. Falwell, 485 U.S. 46, 53 (U.S. 1988).

Keep in mind, however, that you can't make a statement an opinion
merely by prefacing it with "in my opinion." Saying that "in my
opinion, Alex stole ten dollars from the church collection basket"
would lead most listeners to conclude you had evidence that Alex had
indeed stolen the money, and that you intend the statement as one of
fact rather than opinion. The courts do not give protection to false
factual connotations disguised as opinions.

Context and the Totality of the Circumstances

In general, courts will look at the context and medium in which
the alleged defamation occurred. For example, a statement is more
likely to be regarded as an opinion rather than a fact if it occurs in
an editorial blog as opposed to a piece of investigative journalism.
The wider context may also provide a framework for the court: during
the McCarthy-era witch hunts of the 1950s, for example, courts
routinely held that referring to someone as a "Communist" was
defamatory; in the present day, "communist" has taken on a more
generalized (if still often derogatory) political meaning, and courts
would almost certainly find use of the word to be a protected opinion.

The Internet presents particular issues for the courts, as it
is a medium where the lack of face-to-face contact can often make
judging the actual meaning and context of a publication difficult.
Courts are likely to take into account the particular social
conventions of the Internet forum at issue in evaluating a statement's
context.

But much remains to be determined, such as how the courts
would handle the nature of many discussion forums. A 2001 case that
dealt with the opinion privilege is worth quoting at length as an
indication of the approach courts may well take in determining whether
an online posting is a statement of opinion or fact. In regards to a
post on a financial bulletin board site the court noted:

Here, the general tenor, the setting and the format of [the]
statements strongly suggest that the postings are opinion. The
statements were posted anonymously in the general cacophony of an
Internet chat-room in which about 1,000 messages a week are posted
about [the particular company]. The postings at issue were anonymous as
are all the other postings in the chat-room. They were part of an
on-going, free-wheeling and highly animated exchange about [the
particular company] and its turbulent history. . . . Importantly, the
postings are full of hyperbole, invective, short-hand phrases and
language not generally found in fact-based documents, such as corporate
press releases or SEC filings. Global Telemedia International, Inc. v. Doe 1, 132 F.Supp.2d 1261, 1267 (C.D.Cal., 2001).

In short, the court concluded that "the general tone and context of
these messages strongly suggest that they are the opinions of the
posters." Id. at 1267. It is likely that other courts will take
a similarly broad view regarding Internet forums for purposes of the
opinion privilege.

To summarize, the factors courts often use to determine whether a statement is a protected opinion are:

What is the common usage and specific meaning of the language used?

Is the statement verifiable? Can it be proven false?

What is the full context of the statement?

What are the social conventions surrounding the medium the statement occurred in?

Note that each state decides what is required to establish
defamation and what defenses are available, so you should review your
state's specific law in the State Law: Defamation section of this guide to determine how the opinion privilege operates in your jurisdiction.

Jurisdiction:

Subject Area:

Fair Report Privilege

The fair report privilege may protect you from liability -- even if
you publish something that is defamatory -- if you relied upon a
official public document or statement by a public official for the
false information, made clear that the document or statement was your
source, and fairly and accurately used the source. This privilege
enables you to freely report, for example, about what people say during
a council meeting or from the witness stand during a trial or to quote
from public records.

The fair report privilege's historic rationale has been to
encourage public scrutiny of governmental activities through fair and
accurate reporting of governmental proceedings. The defense allows you
to report on government activity without bearing the overwhelming
burden of first proving the truth of everything said in government
documents and proceedings.

Keep in mind that not all states recognize the fair report privilege, so check your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

Your source is an official public document or statement by a public official on a matter of public concern;

You properly attribute the information to that source; and

You fairly and accurately portray the information from the document or statement.

Sources Covered By the Fair Report Privilege

While each state can decide for itself what sources are covered
by the fair report privilege, it generally applies to publicly
available government records, official government reports, and
statements made by government officials. Interim and unfinished
government records and reports generally are not covered.

Examples where the fair report privilege would probably apply include:

Statements made by a judge in a trial

A speech made by a city council member during a council meeting

Testimony during a trial

Facts recorded in a final police report

Analysis reported in an Environmental Protection Agency survey

The privilege would probably not apply to:

Statements made by an arresting officer about the facts of the case, where those facts are not recorded in the police report

Gossip overheard on the courthouse steps

Offhand remarks made by a government official in a private setting

Statements made in a draft government report

Many sources may fall into gray areas. In general, the privilege is
more likely to apply if the statement or fact comes from a public
figure acting in his official capacity or a final, public report. It is
less likely to apply where the figure is more private or is acting
outside of his official scope of duties, or where the report is more
preliminary or is inaccessible to the public.

Further, each state defines the scope of the privilege
differently. For example, some states extend the privilege to more
private settings such as a meeting of a corporation's share holders.
Please consult your state's defamation section for specifics.

Ensuring That Your Use of Sources is "Fair and Accurate"

Whether the statement is true or not does not matter for
purposes of the fair report privilege: even if the witness whose
testimony you relied on is later convicted of perjury, the privilege
still applies if you accurately reported and attributed the testimony
he provided in the first place. It would apply even if you had
knowledge that the witness was lying in his testimony. The purpose of
the privilege is to protect statements or facts from public sources
that are newsworthy in and of themselves, regardless of their veracity.

Generally, courts will follow rules of accuracy that echo the
"gist" and "sting" rule developed to test for "substantial truth." See
the section on Substantial Truth for more information.

But what is critical is that you accurately report (or abridge
fairly) the information: reporting that the witness said the defendant
deliberately burned down the house when the witness had only said that
the defendant accidentally dropped a match would not be protected by
the fair report privilege. Be particularly careful when you are
"translating" complex legalese. Further, be careful not to use
quotations selectively. For example, if a witness in her testimony said
she saw the defendant rob the store, then corrects herself thirty
minutes later in the same testimony to indicate that she had really not
seen the robbery, quoting only the first part would likely fall outside
the fair report privilege.

In general, courts will look at whether you acted in "good
faith," looking far more favorably at an honest mistake that was made
in condensing a long, complex statement or document than at selective
quotation that may be perceived as maliciously intending to portray the
subject in the least favorable light possible. Not every fact must be
included, but many courts will find the privilege lost if the overall
reporting is too one-sided.

Where the court draws the line on fairness and accuracy varies by jurisdiction. Consult your state guide for specifics.

Jurisdiction:

Subject Area:

Neutral Report Privilege

Although not widely adopted, the neutral reportage privilege is
designed to protect the interests of the press in reporting on matters
of public interest, which can often only be done by reporting
accusations made by one public figure about another. Without a neutral
reportage privilege, if you publish what another person has said or
written and that statement turns out to be defamatory, you may be
liable for defamation even if you stated that you believed the
allegation was untrue. In other words, with limited exceptions, you
step into the shoes of those whom you quote or republish on your site.

Keep in mind that not all states recognize the neutral
reportage privilege or apply it to non-traditional publishers, so check
your state's defamation section to confirm that you are covered. In those states that do recognize the privilege, it will generally apply where:

The privilege was first recognized in a 1977 case involving the
New York Times, which reported accusations made by the National Audubon
Society that a group of scientists were behaving as "paid liars" on the
issue of whether DDT was harming bird populations. The story posed a
dilemma. The reporter had a good sense that the Audubon Society had
little or no evidence to back up its claims and that due to republisher
liability he might well be liable for defamation if he published the
story. But he also recognized that in his hands was a newsworthy story
about an accusation made by a prominent organization. The court
responded by recognizing a new form of First Amendment protection:

What is newsworthy about such accusations is that they were
made. We do not believe that the press may be required under the First
Amendment to suppress newsworthy statements merely because it has
serious doubts regarding their truth. Nor must the press take up
cudgels against dubious charges in order to publish them without fear
of liability for defamation. . . . The public interest in being fully
informed about controversies that often rage around sensitive issues
demands that the press be afforded the freedom to report such charges
without assuming responsibility for them.

Edwards,
556 F.2d at 120. The court explicitly stated that the
reporter's knowledge of factual inaccuracies in the story was
immaterial to whether or not the privilege applied.

Examples of the Neutral Reportage Privilege

Examples of instances where courts have applied the neutral reportage privilege include:

Although the neutral reportage privilege has been adopted in
some jurisdictions, few states have clear state-wide rulings on what
the privilege entails. Even in those states that recognize the
privilege, it can vary in important ways:

Private figure plaintiffs: Edwards v. National Audubon
involved an instance where the person defamed (the plaintiff) was a
nationally known scientist, a prominent public figure. In cases where
the plaintiff is a private person, courts have split over whether to
recognize the neutral reportage privilege. See, e.g., Khawar v. Globe International,
19 Cal. 4th 254, 271 (Cal. 1998) (plaintiff was a youth accused of
involvement in the Robert Kennedy assassination). The trend, however,
seems to be for courts to recognize the privilege even when private
figure plaintiffs are involved.

Trustworthy and prominent sources: Few sources are more
trustworthy and prominent than the National Audubon society talking
about an issue related to bird populations. But often this is not the
case. Major stories can come from sources who are neither "trustworthy"
nor "prominent." The courts go both ways on the issue of whether the
privilege applies to cases like these. Many judges have emphasized the
trustworthiness of the source as a key determining factor in whether
the privilege applies; others take a broader view on the circumstances
of the story.

Public interest and newsworthiness: A scientist
allegedly covering up the fact that DDT was killing birds was something
the public had a strong interest in being informed of. Courts vary,
however, as to how legitimate the public interest needs to be. Some
require that there must be a "raging controversy" involving an issue
related to the public good. Others are more lenient. Consult your
individual state defamation section,
but also keep in mind that judges will often look more favorably at the
applicability of the privilege if there is a strong public interest in
the accusation.

Generally speaking, in states that recognize the wire service defense, it will apply if:

You republish a news item from a reputable news agency;

You did not know the information was false;

The news item on its face does not indicate any reason to doubt its veracity; and

You do not substantially alter the news items when republishing it.

In the Internet context, it is not clear how wide a net is cast by
the term "reputable news agency." Traditional wire services such as the
Associated Press and United Press International would likely be
covered, but courts have not yet looked at the wire-service defense in
light of RSS feeds and similar distribution tools.

Keep in mind that rewriting news items in a blog format will
limit your ability to invoke the wire service defense. When you choose
to modify and comment on the material, you will likely lose the ability
to assert this defense.

Not all states recognize the wire service defense, so you should consult your state defamation section of this legal guide for more information.

Jurisdiction:

Subject Area:

Statute of Limitations

"Statute of Limitations" is a term used by courts to describe the
maximum amount of time plaintiffs can wait before bringing a lawsuit
after the events they are suing over have occurred. This time limit is
typically set by state statute and is intended to promote fairness and
keep old cases from clogging the courts.

Each state sets it own time limits for bringing a lawsuit and a
court will typically apply the appropriate statute of limitations of
the state in which the suit is filed. A relatively short limitations
period is an acknowledgment of the importance of free speech
principles, since a short time period reduces the potential chilling
effects of speech-challenging lawsuits.

Because each state has its own statute of limitations for
defamation claims, which vary between one and three years, you should
refer to the State Law: Defamation section to find out what the specific statute of limitations is in your state.

Determining When the Statute of Limitations Period Begins

Generally speaking, the limitations period begins to run when a
defamatory statement is "published" (i.e., communicated to someone
other than the plaintiff).

This rule is relatively easy to apply when a defamatory
statement is spoken to a third person. But what about situations where
publication is to a mass audience, such as on the Internet? In these
situations, could the statute of limitations begin anew at the time of
each publication, such that the statute of limitations could restart every time someone reads a blog post or finds an archive copy of a
newspaper in a library, even if the original material was published
years ago?

Single Publication Rule

Most states have adopted the
so-called "single publication rule," which states that the statute of
limitations period begins to run when a defamatory statement is first
published. For example, if a magazine is distributed to thousands of
news stands, only "one publication" is deemed to have occurred for
purposes of the statute of limitations. As a result, the limitations
period begins when the magazine was initially made available, not when
an extra copy of it left over on the news stand is sold two weeks
later.

However, the single publication rule is not absolute. If the
purported defamatory content is re-published to a substantially
different audience or is altered in a substantial way, a new statute of
limitations period may begin to run. For example, if the material in a
magazine is incorporated into a book, a new statute of limitations
period will likely begin when the book is published.

Most states have applied the single publication rule to the
Internet. Generally, the statute of limitation period begins when a
defamatory statement is first made available online. Courts will likely
find re-publication has started a new statute of limitations period
only when online material is altered in a significant way: be careful
to consider this if you are thinking of substantially editing or
rewriting old material. See your individual state section for information on whether the state recognizes the single publication rule.

To be “defamatory,” a statement must be false and bring the defamed person into disrepute, contempt, or ridicule, or impeach her honesty, integrity, virtue, or reputation. Godbehere v. Phoenix Newspapers, Inc., 162 Ariz. 335, 341 (Ariz. 1989).

These elements of a defamation claim in Arizona are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Arizona distinguishes between statements that constitute libel per se and libel per quod. Libel per se are written communications which “on their face and without the aid of any extrinsic matter” tend to “bring any person into disrepute, contempt or ridicule” or “impeach the honesty, integrity, virtue or reputation.” Ilitzky v. Goodman, 57 Ariz. 216, 220‑21 (Ariz. 1941). In contrast, libel per quod consists of written communications which “on their face do not fall within the definition [of defamation] but which by reason of special extraneous circumstances actually do.” Id. at 221.

Arizona also distinguishes between statements that constitute slander per se and slander per quod. In Arizona, a statement that does any of the following is slander per se:

Charges a contagious or venereal disease, or that woman is not chaste; or

The distinction between libel per se and per quod and slander per se and per quod matters because it effects the type of damages a plaintiff must allege to prevail. To recover for libel or slander per quod, a plaintiff must allege special damages, i.e., lost profits or other "pecuniary loss." Boswell, 152 Ariz. 1, 6 n.4. In contrast, to recover for libel or slander per se, a plaintiff does not have to allege special damages and may instead allege non-pecuniary damages, such as damage to his reputation. Moreover, in cases of libel or slander per se, damages may be presumed if:

In Arizona, to classify a person as a public figure, the person must have achieved “‘such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts.” Dombey, 150 Ariz. at 480 (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974).

The Arizona Supreme Court has recognized that an individual may become a limited-purpose public figure for a certain event or controversy when he “‘voluntarily injects himself or is drawn into a particular public controversy. . . .’” Id. (quoting Gertz, 418 U.S. at 351).

In determining whether a person is a limited-purpose public figure, Arizona courts will consider whether the person has “‘thrust[] himself or his views into public controversy to influence others’” and whether the person’s “‘position with respect to matters of public concern gives him access to the media on a regular and continuing basis.’” Id. at 483 (quoting Hutchinson v. Proxmire, 443 U.S. 111, 135 (1979).

The Arizona Supreme Court has held that a person “‘is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention.’” Id. (quoting Wolston v. Reader’s Digest Ass’n, Inc., 443 U.S. 157, 167 (1979). Rather, the person must voluntarily assume a position that invites attention. Id. at 485 (quoting McDowell v. Paiewonsky, 769 F.2d 942, 950 (3rd Cir. 1985). In that regard, the Court has stated that “doing business with the government, being swept up in a controversy over an issue of public interest or concern, being named in articles creating a public controversy, and defending oneself against charges leveled in the media are all insufficient to automatically transform a private individual into a public figure.” Id. at 484.

Arizona courts and the 9th Circuit have held the following individuals, among others, to be limited-purpose public figures:

A World War II veteran who had authorized a biography and solicited press coverage of that work. Thomas v. Los Angeles Times Commc’ns. LLC, 45 Fed. Appx. 801, 803 (9th Cir. 2002).

The insurance agent of record for an Arizona county, where the insurance agent made recommendations resulting in substantial expenditures from the public and financially benefited from his position, although he was not actually employed by the county. Dombey, 150 Ariz. at 484‑85.

An individual, in suing his former employer for defamation, who had contacted the media regarding his claims of wrongful termination and sent his complaint to approximately twenty companies in related business fields. Prendeville v. Singer, 155 Fed. Appx. 303, 305-06 (9th Cir. 2005).

On the other hand, Arizona courts have found the following individuals and organizations, among others, to be private figures:

A company selling an electronic parts catalog where the company was not involved in any public controversy prior to the defendant’s allegedly defamatory statements. The Court specifically held that the company’s use of advertising did not make it a public figure. Dealer Computer Servs., Inc. v. Fullers’ White Mountain Motors, Inc., No. CV07-00748-PCT-JAT, 2008 U.S. Dist. LEXIS 83311 (D. Ariz. Oct. 16, 2008).

Public officials, all-purpose public figures, and
limited-purpose public figures must prove that the defendant acted with
actual malice, i.e., knowing that the statements were false or
recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

In Arizona, the fair comment privilege “is limited to discussions of matters which are of
legitimate concern to the community as a whole because they materially
affect the interests of all the community.” Phoenix Newspapers, Inc. v. Church, 103 Ariz. 582, 595 (Ariz. 1968). If actual malice is shown, however, the privilege is defeated. Id.

The fair comment privilege protects both media and non-media defendants when the plaintiff is a public official. The Arizona Supreme Court ruled that regardless of the defendant's media status, "when the plaintiff is a public official and the speech is of public concern, [then] the plaintiff bears the burden of showing that a statement is provably false before an action for defamation can lie." Turner v. Devlin, 174 Ariz. 201, 205 (1993).

In Arizona, the precise scope of the fair report privilege, also known as the public records privilege, is not clear because there is only one case in which the Arizona courts have applied the privilege.

In Sallomi v. Phoenix Newspapers, Inc., 160 Ariz. 144, 147 (Ariz. Ct. App. 1989), the Court of Appeals of Arizona held that the “public records privilege” applied to articles which were “a fair and accurate abridgment of the public records used.” In that case, the Arizona Republic published articles about the apprehension of a hitman at a local restaurant, which it described as a “hangout for narcotics dealers and users” owned by a man being investigated for fraud and attempted extortion. Id. at 145. The owners of the restaurant filed suit for defamation. The information in the articles was obtained from interviews with police officers, affidavits submitted to support searches of various locations, a grand jury indictment, and a booking slip on file at the Phoenix Police Department. Id. at 145‑46. The Court reviewed the articles, the search warrant affidavits, grand jury indictment, and booking slip and concluded that although the newspaper may have relied on interviews with police officers, which are not a public record, because the information obtained was available in the affidavits, indictment, and booking slip, the privilege applied. Id. at 146‑47.

Neutral Reportage Privilege

The CMLP has not identified any cases in Arizona concerning the neutral reportage privilege. If you are aware of any, please contact us. The 9th Circuit has mentioned the adoption of the neutral reportage privilege in other jurisdictions but does not appear to have specifically adopted it itself. See Flowers v. Carville, 310 F.3d 1118, 1128 (9th Cir. 2002).

Wire Service Defense

A federal district court in Arizona has applied the wire service defense in at least one case. In In re Med. Lab. Mgmt. Consultants v. Am. Broad. Cos., Inc., 931 F. Supp. 1487, 1492 (D. Ariz. 1996), the court held that the defense applied to an ABC-affiliate in Phoenix that broadcast an edition of “Prime Time Live” but played no part in the planning, reporting, production, or editing of the broadcast.

Retraction or Correction

By statute in Arizona, the type of damages a plaintiff may recover from a newspaper, magazine, or radio or television broadcaster can be limited by the publication of a retraction. A.R.S. § 12‑653.02 provides:

In an action for damages for the publication of a libel in a newspaper or magazine, or of a slander by radio or television broadcast, the plaintiff shall recover no more than special damages [i.e. damages with respect to the plaintiff’s property, business, trade, profession or occupation] unless a correction is demanded and not published or broadcast, unless the plaintiff shall prove the publication or broadcast was made with actual malice. The plaintiff shall serve upon the publisher at the place of publication, or broadcaster at the place of broadcast, a written notice specifying the statements claimed to be libelous and demanding that the same be corrected. The notice and demand shall be served within twenty days after actual knowledge of the plaintiff of the publication or broadcast of the statements claimed to be libelous.

If a correction is demanded within the time period prescribed by A.R.S. § 12‑653.02 and a correction is not published or broadcast within three weeks, the plaintiff may recover damages for loss of reputation and punitive damages if she can prove actual malice. A.R.S. § 12‑653.03.

The applicability of the retraction statute in all cases in questionable because the Arizona Supreme Court has held that the retraction statute violates art. 18, § 6 of the Arizona constitution to the extent that it eliminates “general damages for both loss of reputation and emotional harm, preventing those damaged by defamation from recovering general damages for actual injury.” Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 19 (Ariz. 1986).

The retraction statute also does not apply not apply “to any publication or broadcast made within thirty days preceding any election, if such publication or broadcast is designed to in any way influence the results of such election.” A.R.S. § 12‑653.05.

At least one federal court in Arizona has stated that the retraction statute applies only to “libel actions based on newspaper or magazine articles” and does not apply to comments made on an online forum. Dealer Comp. Servs. v. Fullers’ White Mt. Motors, Inc., No. CV07-00748-PCT-JAT, 2008 U.S. Dist. LEXIS 83311 at *19 (D. Ariz. Oct. 16, 2008).

An action for damages shall not lie against the editor, publisher, or proprietor of a newspaper or periodical for publication of a report, proceedings or other matter published at the instance of a public officer acting in compliance with law.

The owner, licensee or operator of a visual or sound radio broadcasting station or network of stations, and the agents or employees of the owner, licensee or operator, shall not be liable for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast by one other than the owner, licensee or operator, or agent or employee thereof, unless it is alleged and proved by the complaining party that the owner, licensee, operator or agent or employee has failed to exercise due care to prevent publication or utterance of the statement in the broadcast. The exercise of due care shall be construed to include a bona fide compliance with federal law or regulations of a federal regulatory agency.

An owner, licensee or operator, or the agents or employees of such owner, licensee or operator of a station or network of stations shall not be liable for damages for defamatory statements published or uttered over the facilities of such station or network by or on behalf of a candidate for public office.

In an action for damages for a defamatory statement published or uttered in or as a part of a visual or sound radio broadcast, the complaining party shall be allowed only the actual damages alleged and proved.

CMLP has not identified any Arizona cases in which these statutes have been applied. If you are aware of any, please contact us.

Statute of Limitations for Defamation

The statute of limitations for defamation is one (1) year. See A.R.S. § 12‑541. The Court of Appeals of Arizona has stated that the general rule is that the statute of limitations begins to run upon publication; however, the Court has also created an exception to the general rule and held that the statute of limitations may instead begin to run upon discovery “in those situations in which the defamation is published in a manner in which it is peculiarly likely to be concealed from the plaintiff, such as in a confidential memorandum or a credit report.” Clark v. Airesearch Mfg. Co. of Ariz., Inc., 138 Ariz. 240, 242 (Ariz. Ct. App. 1983).

By statute, the single publication rule applies in Arizona. See A.R.S. § 12-651. The statute provides, in pertinent part:

No person shall have more than one cause of action for damages for libel, slander, invasion of privacy or any other tort founded upon a single publication, exhibition or utterance, such as any one edition of a newspaper, book or magazine, any one presentation to an audience, any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.

A judgment in any jurisdiction for or against the plaintiff upon the substantive merits of any action for damages founded upon a single publication, exhibition or utterance as described in subsection A shall bar any other action for damages by the same plaintiff against the same defendant founded upon the same publication, exhibition or utterance.

The CMLP is not aware of any cases in Arizona that apply the single publication rule in the context of a statement published on the Internet. If you are aware of any Arizona cases that acknowledge the single publication rule in the Internet context, please notify us.

has a natural tendency to injure or which causes "special damage," and

the defendant's fault in publishing the statement amounted to at least negligence.

Publication, which may be written or oral, means communication to a
third person who understands the defamatory meaning of the statement
and its application to the person to whom reference is made.
Publication need not be to the “public” at large; communication to a
single individual other than the plaintiff is sufficient. Republishing
a defamatory statement made by another is generally not protected.

*As a matter of law, in cases involving public figures or matters of
public concern, the burden is on the plaintiff to prove falsity in a
defamation action. Nizam-Aldine v. City of Oakland, 47 Cal. App. 4th
364 (Cal. Ct. App. 1996). In cases involving matters of purely
private concern, the burden of proving truth is on the defendant. Smith v. Maldonado, 72 Cal.App.4th 637, 646
& n.5 (Cal. Ct. App. 1999). A
reader further points out that, even when the burden is technically on
the plaintiff to prove falsity, the plaintiff can easily shift the
burden to the defendant simply by testifying that the statements at
issue are false.

Defamation Per Se

A plaintiff need not show special damages (e.g., damages to the
plaintiff's property, business, trade, profession or occupation,
including expenditures that resulted from the defamation) if the
statement is defamation per se. A statement is defamation per se if it defames the plaintiff on its face, that is, without the need for
extrinsic evidence to explain the statement's defamatory nature. See Cal. Civ. Code § 45a;
Yow v. National Enquirer, Inc. 550 F.Supp.2d 1179, 1183 (E.D. Cal.
2008).

For example, an allegation that the plaintiff is guilty of a crime is
defamatory on its face pursuant to Cal. Civil Code § 45a. In one case,
a non-profit organization (NPO) that advocates for the rights of
low-income migrant workers posted flyers claiming a national retailer
of women's clothing engaged in illegal business practices by
contracting with manufacturers that did not pay minimum wage or
overtime. The retailer brought a defamation suit against the NPO.
Although the statements would have qualified as defamation per se,
the court concluded the retailer failed to establish the statements in
the flyers were false, and therefore the statements could not be
considered defamatory. See Fashion 21 v. Coal. for Humane Immigrant
Rights of L.A., 12 Cal.Rptr.3d 493 (Cal. Ct. App. 2004).

Public Officials

In California, public officials are those who have, or appear to
the to have, substantial responsibility for or control over the conduct
of government affairs. For example, the following persons have been
considered public officials in California:

A police officer, an assistant public defender, an assistant district attorney, and a government employed social worker.

Public Figures

In California, to classify a person as a public figure, the
person must have achieved such pervasive fame or notoriety that he
becomes a public figure for all purposes and in all contexts. Someone
who voluntarily seeks to influence resolution of public issues may also
be considered a public figure in California. For example, the following
persons have been considered public figures in California:

A former City Attorney who also represented the city's redevelopment agency;

A licensed clinical psychologist whose so-called “Nude
Marathon” in group therapy is a means of helping people to shed their
psychological inhibitions by the removal of their clothes;

An author and television personality;

The founder of a Church that has a program for the rehabilitation of drug addicts;

An associate of Howard Hughes, a famous aviator, movie
producer, and billionaire, from approximately 1956 to 1970 who
functioned as an "alter ego" and "personal representative" of Mr.
Hughes;

A real-estate developer who was interested in building a housing development near a toxic chemical plant; and

A "prominent and outspoken feminist author" and anti-pornography advocate.

Limited-Purpose Public Figures

A limited-purpose public figure
is a person who voluntarily injects herself or is drawn into a
particular public controversy. It is not necessary to show that she
actually achieves prominence in public debate; her attempts to thrust
herself in front of the public is sufficient. Copp v. Paxton, 52
Cal.Rptr.2d 831, 844 (Cal. Ct. App. 1996). As with all limited-purpose
public figures, the alleged defamation must be relevant to the
plaintiff's voluntary participation in the public controversy (if the
issue requires expertise or specialized knowledge, the plaintiff's
credentials as an expert would be relevant).

In California, the following persons have been considered limited-purpose public figures:

The president of two corporations located in a California
village that opposed the rezoning of property adjacent to his property.
Kaufman v. Fidelity Fed. Sav. & Loan Ass'n, 189 Cal.Rptr. 818 (Cal.
Ct. App. 1983);

An individual who publicly claimed to be an expert in
earthquake safety and a veteran in earthquake rescue operations. Copp
v. Paxton, 52 Cal.Rptr.2d 831 (Cal. Ct. App. 1996).

Actual Malice and Negligence

In California, a private figure plaintiff bringing a
defamation lawsuit must prove that the defendant was at least negligent
with respect to the truth or falsity of the allegedly defamatory
statements. Public officials, all-purpose public figures, and
limited-purpose public figures must prove that the defendant acted with
actual malice, i.e., knowing that the statements were false or
recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

The California Supreme Court has not formally recognized the neutral reportage privilege.
Nevertheless, several federal courts have applied the neutral report
privilege in cases involved California law and there are relatively
strong indications that state courts in California would apply the
privilege if faced with the proper fact pattern.

The California Supreme Court indicated a possible willingness
to consider the neutral report privilege in the context of public
figure defamation. In that case, which involved an allegation that the
plaintiff, a private citizen, participated in the Robert Kennedy
assassination when he was 21 years old, the California Supreme Court
held that the neutral report privilege did not apply to cases where the
plaintiff was a private figure. Khawar v. Globe International,
19 Cal. 4th 254, 271 (Cal. 1998). The court left open the question,
however, whether the neutral report privilege would apply if the
defamatory statement involved a public figure.

Although their application of the privilege is not binding on
California state courts, two federal courts in the state have applied
the neutral reportage privilege in situations involving the following:

A college basketball player (ruled a public figure) who
accused his coach (also deemed a public figure) of participating in
payments made to the player by team boosters. Barry v. Time, Inc., 584
F. Supp. 1110, 1112 (D. Cal. 1984). The court held that there was no
requirement that the person making the accusation have a reputation for
"trustworthiness" for the neutral report privilege to apply.

The details published by a tabloid, News of the World, about
the private life of a well known actor. Ward v. News Group Int'l, 733
F. Supp. 83 (D. Cal. 1990). The court emphasized that the republication
occurred in a fair and accurate manner and that the tabloid published
the actor's denial along with the accusation.

Wire Service Defense

The wire service defense
generally is not recognized in California. However, one trial court in
California did recognize the wire service defense in an unpublished
decision. Peper v. Gannett Co., Inc., No. 2002061753, 2003 WL 22457121
at *6 (Cal. Super. Ct. 2003). Since the decision was at the trial court
level and unpublished, other California courts are free to disregard
the court's decision to apply the wire service defense.

Statute of Limitations for Defamation

California applies the single publication rule pursuant to California Civil Code 3425.1-3425.5.
A California Court of Appeals recognized the single publication rule in
the context of publications on the Internet. Traditional Cat Ass'n,
Inc. v. Gilbreath, 13 Cal.Rptr.3d 353, 358 (Cal. Ct. App. 2004). For a
definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

In the District of Columbia, any written or printed statement that falsely accuses someone of committing a crime constitutes defamation per se.
See Raboya v. Shrybman & Associates, 777 F.Supp. 58 (D.D.C. 1991).
If a statement is defamation per se, the court will assume harm to the
plaintiff's reputation, without further need to prove that harm.

The District no longer allows presumed damages for defamation
per se directed at public figures, following the U.S. Supreme Court's
decision in Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974). See El-Hadad v. United Arab Emirates, 496 F.3d 658
(D.C. Cir. 2007) (affirming unpublished lower court decision implying
that presumed damages are no longer available for public figures). The
court in El-Hadad noted that D.C. law provides for presumed damages for
defamation per se directed at private figures.

Public Figures

Federal courts in D.C., applying D.C. law, have ruled that corporate
plaintiffs are considered public figures as a matter of law in
lawsuits against mass media defendants that involve "matters of
legitimate public interest." See Oao Alfa Bank v. Center for Public
Integrity, 387 F.Supp.2d 20, 48 (D.D.C. 2005) (citing other cases). The
opinions of federal district courts are not definitive on the meaning
of D.C. law, but other cases might choose to follow this rule. Should
they decide to do so, then any corporation -- no matter how large --
would have to prove actual malice in order to prevail in such cases.
There is no reason to believe this rule would not apply to lawsuits
involving citizen media defendants because the underlying rationale
focuses on the characteristics of corporations, not those of the
defendant in the lawsuit.

Actual Malice and Negligence

In the District,
a private figure plaintiff bringing a
defamation lawsuit must prove that the defendant was at least negligent
with respect to the truth or falsity of the allegedly defamatory
statements. Public officials, all-purpose public figures, and
limited-purpose public figures must prove that the defendant acted with
actual malice, i.e., knowing that the statements were false or
recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

D.C. courts recognize the the fair report privilege. The privilege is applied broadly to statements made during proceedings before any court, agency, executive body, legislative body, and to reports of any official proceeding or action taken by a government officer or agency.

Wire Service Defense

D.C. recognizes the wire service defense,
which precludes defamation liability for speakers who republish content
from wire services. D.C. also recognizes the reverse of the standard
wire service defense: wire services may rely on content from reputable
newspapers without being held negligent. See Winn v. UPI, 938 F.Supp.
39 (D.D.C. 1996).

In White v. Fraternal Order of Police,
909 F.2d 512 (D.C. Cir. 1990), the U.S. Court of Appeals for the D.C.
Circuit noted that it had not yet recognized the neutral reportage
privilege, although the court seemed to express a favorable view of it.
At least one lower D.C. court has applied the privilege. See In re
United Press Intern, 106 B.R. 323 (D.D.C. 1989) (news reports were
immune from defamation liability under neutral reportage). In an
earlier case, a federal district court held that the neutral report
privilege would not apply to a case involving statements about a
private figure. See Dressbach v. Doubleday & Co., 8 Media L. Rep.
1793 (D.D.C. 1982).

Statute of Limitations for Defamation

The District has adopted the single publication rule. See Jin v.
Ministry of State Secretary, 254 F.Supp. 2d 61, 68 (D.D.C. 2003). For a
definition of the "single publication rule," see the Statute of Limitations for Defamation section of this guide.

In Jankovic v. International Crisis Group,
494 F.3d 1080 (D.C. Cir. 2007), the D.C. Circuit held that the single
publication rule applies to statements posted on the Internet, and that
the statute of limitations runs from the date of first publication
absent "republication" of the allegedly defamatory statement by
updating it or taking steps to expand the audience for it. While the
Court of Appeals of the District of Columbia has not ruled on the issue
as a matter of state law, it is likely that other D.C. courts would
apply this holding. Therefore, the statute of limitations in Internet
cases should run from the date of first posting, absent some
modification that triggers "republication."

Jurisdiction:

Subject Area:

Florida Defamation Law

Note: This page covers information specific to Florida. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Under Florida law, the elements of a defamation claim are:

the
defendant published a false statement;

about the plaintiff;

to
a third party; and

the falsity of the statement caused injury to
the plaintiff.

Border Collie Rescue v. Ryan, 418 F.Supp.2d 1330, 1348
(M.D.Fla. 2006). A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence. The elements of a defamation claim in Florida are similar
to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

In Mid-Florida Television Co. v. Boyles, 467 So.2d 282 (Fla. 1985),
the Florida Supreme Court ruled that the state no longer recognizes
presumed damages for defamation per se
in lawsuits against media defendants. (Defamation "per se" refers to a
legal doctrine which holds that some statements of fact are so
egregious that a court will presume that they harmed the plaintiff's
reputation.) The CMLP is not aware of any Florida cases deciding
whether a blogger or non-traditional journalist is a "media defendant"
for purposes of applying this rule. In cases involving matters of
purely private concern, a Florida court could still presume damages
based on defamation per se. In Florida, a statement amounts to
defamation per se if it accuses the plaintiff of committing a crime or
imputes to the plaintiff conduct, characteristics, or a condition
incompatible with the proper exercise of his or her lawful business,
trade, profession, or office.

Public and Private Figures

Florida has a broad conception of public officials, a category of
government actors who must prove actual malice in order to prevail on a
defamation claim. The Florida Supreme Court found a police officer to
be a public official where he was a "highly visible representative of
government authority who has power over citizens and broad discretion
in the exercise of that power." Smith v. Russell, 456 So.2d 462 (Fla.
1984). Florida courts have found that a corrections officer, an
administrator of large public hospital, and even a harbormaster were
public officials.

Criminal Libel

Unlike most states, Florida still recognizes criminal libel. Chapter 836
of the Florida Statutes does not define the elements of criminal libel,
but it does specifically prohibit false statements that harm a bank or
other financial institution's reputation or accuse a female of being
unchaste. To the extent that the statute remains valid, criminal libel
is a first-degree misdemeanor. However, a Florida appeals court found Fla. Stat. § 836.11
-- which deals with anonymous defamation of individuals or religious
groups -- to be unconstitutional. State v. Shank, 795 So.2d 1067
(Fla.Ct.App., 4th Dist. 2001).

Actual Malice and Negligence

In Florida,
a private figure plaintiff bringing a
defamation lawsuit generally must prove that the defendant was at least negligent
with respect to the truth or falsity of the allegedly defamatory
statements. Public officials, all-purpose public figures, and
limited-purpose public figures must prove that the defendant acted with
actual malice, i.e., knowing that the statements were false or
recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

To our knowledge, Florida appellate courts have considered the application of the single publication rule to the Internet on only one occasion, in Rudloe v. Karl, No. 1D03-4651 (Fla. Dist. Ct. App. Nov. 5, 2004). In that opinion, the District Court of Appeal for the First District wrote that the single publication rule applies to Internet content, and that the statute of limitations does not reset every time that a new user accesses allegedly defamatory material. However, after a rehearing, this opinion was withdrawn by the court and superseded by an opinion that did not address statute of limitations issues. Accordingly, while the original opinion might suggest the manner in which Florida courts would apply the single publication rule to online speech, the opinion itself has no precedential value and should not be cited in court. If you are aware of any additional Florida cases that address the
single publication rule in the Internet context, please notify us.

These elements of a defamation claim in Georgia are similar to the elements listed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Georgia recognizes that certain statements constitute defamation per se.
These statements are so egregious that they will always be considered
defamatory and are assumed to harm the plaintiff's reputation, without
further need to prove that harm. Under Georgia statutes, a statement is
defamatory per se if it:

charges another person with a crime punishable by law;

charges another person “with having some contagious disorder
or with being guilty of some debasing act which may exclude him from
society;” or

refers to the trade, office, or profession of another person, and is calculated to injure him.

Georgia courts have interpreted defamation per se to include
statements “that one is guilty of a crime, dishonesty or immorality,”
Eidson v. Berry, 415 S.E.2d 16, 17 (Ga. Ct. App. 1992), or that accuse
one “of having sexual relations with any person other than his wife,”
Baskin v. Rogers, 493 S.E.2d 728, 730 (Ga. Ct. App. 1997). The courts
have narrowed the criteria for defamation of a business person by
adopting the “single instance test.” A plaintiff has no grounds for a
complaint if the alleged defamatory statement refers to only a single
instance of mistake or ignorance on the part of a business or
professional person. See Crown Andersen, Inc. v. Georgia Gulf Corp.,
554 S.E.2d 518, 521 (Ga. Ct. App. 2001).

Georgia follows Gertz v. Robert Welch, Inc.,
418 U.S. 323 (1974), in defining public figures. The Georgia Court of
Appeals refined its test for limited-purpose public figures
in the
well-known case of Richard Jewell, the security guard during the 1996
Olympics in Atlanta who was first hailed as a hero for discovering a
knapsack bomb in Centennial Olympic Park, but later was investigated by
the FBI as a possible suspect in placing the bomb. In the court's view,
by granting a series of media interviews in which he attempted to
influence public perception of security at the park, Jewell became a
voluntary limited-purpose public figure for purposes of his libel suit
against an Atlanta newspaper. See Atlanta Journal-Constitution v.
Jewell, 555 S.E.2d 175, 185 (Ga. Ct. App. 2001).

The Georgia Court of Appeals adopted a three-part test for
determining who is a limited-purpose public figure: “the court must [1]
isolate the public controversy, [2] examine the plaintiff's involvement
in the controversy, and [3] determine whether the alleged defamation
was germane to the plaintiff's participation in the controversy.”
Atlanta Journal-Constitution v. Jewell, 555 S.E.2d at 183.

Actual Malice and Negligence

In Georgia,
a private figure plaintiff bringing a
defamation lawsuit must prove that the defendant was at least negligent
with respect to the truth or falsity of the allegedly defamatory
statements. Public officials, all-purpose public figures, and
limited-purpose public figures must prove that the defendant acted with
actual malice, i.e., knowing that the statements were false or
recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

Fair and accurate reports of legislative and court proceedings
are among the privileged communications protected by statute in
Georgia. See Ga. Code Ann. §51-5-7(5), (6).
This privilege also extends to fair, accurate, and impartial reports
about administrative agency proceedings. Morton v. Stewart, 266 S.E.2d
230, 233 (Ga. Ct. App. 1980). Georgia courts have generally, but not
universally, held that the fair report privilege is qualified and can
be defeated by proof of actual malice. Ga. Code Ann. §51-5-7(8) also provides a qualified privilege for truthful reports of information received from arresting officers or police authorities.

Neutral Reportage Privilege

Georgia courts have mentioned the "neutral reportage privilege"
a handful of times, but they sometimes appear to confuse it with the
fair report privilege and the statutory privilege for reporting
information received from arresting officers or police authorities. At
other times, Georgia courts use the term "neutral reportage" to
describe whether a report is "fair and honest" for purposes of the fair
report privilege. Because of this confusion, it is difficult to say
whether Georgia recognizes the privilege as it is usually understood.

Statute of Limitations for Defamation

Georgia has adopted the single publication rule. See Carroll
City/County Hosp. Auth. v. Cox Enters., 256 S.E.2d 443, 444 (Ga. 1979).
For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

In McCandliss v. Cox Enterprises,
595 S.E.2d 856 (Ga. Ct. App. 2004), a Georgia appeals court held that
the single publication rule applied to the posting of news articles on
a newspaper's website. If other Georgia courts follow the McCandliss decision, the statute of limitations in Internet cases would begin to run from the
date of first posting, absent a modification that triggers
"republication."

Jurisdiction:

Subject Area:

Illinois Defamation Law

Note: This page covers information specific to Illinois. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Under Illinois law, the elements of a defamation claim are:

the
defendant made a false statement about the plaintiff;

there was an
unprivileged publication to a third party;

fault by the defendant amounting to at least negligence;
and

the publication damaged the plaintiff.

The elements of a defamation claim in Illinois are for the most part similar to the elements
listed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Illinois recognizes that certain statements constitute defamation per se.
These statements are so egregious that they will always be considered
defamatory and are assumed to harm the plaintiff's reputation, without
further need to prove that harm. In Illinois, a statement that does any
of the following things amounts to defamation per se:

accuses the plaintiff of committing a crime;

indicates that the plaintiff is infected with a loathsome communicable disease;

indicates that the plaintiff is unable to perform or lacks integrity in performing his or her employment duties;

attributes to the plaintiff a lack of ability or otherwise harms the plaintiff in his or her profession; or

Illinois courts apply a unique "reasonable grounds" standard of
negligence in defamation cases brought by private figures. This
standard requires that the defendant either knew the publication was
false or believed the publication was true but "lacked reasonable
grounds for that belief." Troman v. Wood, 62 Ill.2d 1984, 299 (Ill.
1975). Thus, the Illinois negligence test resembles a slightly more
lenient "actual malice" test. See the general page on actual malice and negligence for details on the terminology and standards referenced here.

Most of the privileges and defenses to defamation can be
defeated if the plaintiff proves that the defendant acted with actual
malice. The fair report privilege
is the exception to this rule; it cannot be defeated by a showing of
actual malice. See Solaia Tech., LLC v. Specialty Pub'g Co., 852 N.E.2d
825 (Ill. 2006).

Fair Report Privilege

In Illinois, the fair report privilege
covers reports of official government proceedings and information
contained in public records. This includes court proceedings and
matters contained in court documents, as well as police reports, verbal
statements by governmental officials in their official capacities, and
things like marriage and divorce records, birth and death records, and
property records. The privilege protects you if your report fairly and
accurately reflects the official information. As noted, the privilege
is absolute, and cannot be defeated by a finding of malice or actual
malice.

Neutral Reportage Privilege

The Supreme Court of Illinois has not recognized or rejected the neutral reportage privilege.
Lower courts in Illinois do not agree on whether Illinois law
recognizes the privilege. Therefore, its status remains uncertain.

Wire Service Defense

Illinois has only addressed the wire service defense in one
case, Kapetanovic v. Stephen J. Productions, Inc., 30 Media L. Rep.
1786 (N.D.Ill. 2002), but that case is not binding legal authority because it involved a federal court. It
is worth noting, however, that the Illinois federal court recognized
and applied the defense in that case and Illinois state courts may decide to follow suit.

Statute of Limitations for Defamation

The statute of limitations for defamation in Illinois is one (1) year. See 735 ILCS 5/13-201

The CMLP could not locate any cases in Illinois that apply the
single publication rule in the context of a statement published on the
Internet. If you are aware of any Illinois cases that acknowledge the
single publication rule in the Internet context, please notify us.

Jurisdiction:

Subject Area:

Indiana Defamation Law

Note: This page covers information specific to Indiana. For general information concerning defamation, see the Defamation section of this guide.

Elements of Defamation

Under Indiana law, the elements of defamation claim are:

a communication with defamatory imputation;

malice;

publication; and

damages.

Bochenek v. Walgreen Co., 18 F.Supp.2d 965 (N.D.Ind. 1998). A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence. These
elements of a defamation claim in Indiana are for the most part similar
to the elements listed in the general Defamation section, with the following exceptions.

Indiana applies the "actual malice" standard of fault in
defamation claims involving private figures if the disputed statements
are newsworthy or involve matters of public concern. Journal-Gazette
Co. v. Bandido's, Inc., 712 N.E.2d 130 (Ind. 2006). Most states apply a
negligence standard in defamation claims involving public figures. See the general page on actual malice and negligence for details on this standard.

Indiana has not explicitly recognized or rejected the neutral reportage privilege. The sole case law on the issue is a 7th Circuit
decision that upheld an unpublished Indiana federal court judgment but
declined to address the issue of neutral reportage. Woods v. Evansville
Press Co., 791 F.2d 480 (7th Cir. 1986). The federal trial court had
recognized and applied the privilege, but the 7th Circuit affirmed on
other grounds.

Statute of Limitations for Defamation

Indiana is unusual in that its courts have held that the statute of
limitations begins when the "damage" of the statement is "susceptible
of ascertainment," rather than when the statement was published.
Wehling v. Citizens Nat'l Bank, 586 N.E.2d 840 (Ind. 1992). The Wehling
court determined that this means the statute of limitations begins when
the plaintiff knew about the harm caused by the disputed statements or
would have known about the harm if she had exercised due diligence.

Indiana has no case law on whether or not the single
publication rule applies. If you are aware of any Indiana cases that acknowledge the
single publication rule in the Internet context, please notify us.
For a definition of the "single publication
rule," see the Statute of Limitations for Defamation section.

Jurisdiction:

Subject Area:

Massachusetts Defamation Law

Note: This page covers information specific to Massachusetts. For general information concerning defamation, see the Defamation section of this guide.

Elements of Defamation

In Massachusetts, the elements of a defamation claim are:

a false and defamatory communication

of and concerning the plaintiff which is

published or shown to a third party.

Carmack v. National R.R. Passenger Corp, 486 F.Supp.2d 58 (D.Mass
2007). A plaintiff must also prove that the defendant's fault in publishing the statement amounted to at least negligence. These elements of a defamation claim in Massachusetts are
similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se

Massachusetts has abolished the separate category of defamation per se
at least in part. Under state common law, any libel is actionable per
se. Sharratt v. Housing Innovations, Inc., 365 Mass. 141 (Mass. 1974).
This means that plaintiffs do not need to plead or prove economic
losses in order to prevail on libel claims.

However, Massachusetts courts have continued to discuss
defamation per se. It appears the state might still recognize libel per
se when determining whether a statement "could damage the plaintiff's
reputation in the community" -- which is part of the consideration of
whether the statement is defamatory. Albright v. Morton, 321 F. Supp.
2d 130 (D.Mass. 2004); Stone v. Essex County Newspapers, Inc., 367
Mass. 849 (Mass. 1975). Libel per se in this context seems to encompass
statements that charge the plaintiff with a crime, that allege the
plaintiff has certain diseases, or that may prejudice the plaintiff's
profession or business. Morton, 321 F. Supp. at note 3.

It also appears that Massachusetts still recognizes defamation
per se in cases involving slander rather than libel. Ravnikar v.
Bogojavlensky, 438 Mass. 627 (Mass. 2003). However, this is unlikely to
arise in an Internet-based defamation action because online defamation
almost always involves libel law.

Public Officials

In Massachusetts, any elected official holding public office is
considered a public official for the purposes of defamation.
Lane v. MPG Newspapers, 438 Mass. 476, 482-484 (Mass. 2003. This means
that any elected official in public office -- no matter how small the
scope of her duties -- must prove that the defendant acted with actual malice
in order to prevail on a defamation claim. The Lane court found that an
elected town representative was a public official though the
representative's duties were limited to meeting with the rest of a
104-member committee once a year to vote on various town issues.

Criminal Libel

Massachusetts recognizes criminal libel as a common law offense,
though it does not have a criminal libel statute. Commonwealth v.
Clapp, 4 Mass. 163 (Mass. 1808). However, there does not appear to be
any Massachusetts criminal libel case law since the Supreme Court's
1966 decision in Ashton v. Kentucky, which invalidated the Kentucky
common law crime of criminal libel as unconstitutionally vague and
overbroad. Ashton v. Kentucky, 384 U.S. 195 (1966). Following the
Court's decision in Ashton, many states have repealed their criminal
libel statutes or ceased to recognize the common law crime.

As a general matter, if a statement is substantially true, it
cannot be actionable as defamation. See Milgroom v. News Group Boston,
412 Mass. 9, 12-13 (1992). Under Massachusetts statutory law, however,
"truth shall be a justification unless actual malice is proved." M.G.L. c. 231 Section 92.
This potential limitation on the truth defense is unlikely to be
constitutional and, indeed, Massachusetts courts have held that it does
not apply to cases involving public-figure or public-official
plaintiffs or cases brought against media defendants that deal with
matters of public concern. Materia v. Huff, 394 Mass. 328, 333 n.6
(1985); Shaari v. Harvard Student Agencies, Inc., 427 Mass. 129, 134
(1998). No court has applied the statute in a case brought by a private
plaintiff that involves issues not of public concern.

Statute of Limitations for Defamation

The statute of limitations for defamation in Massachusetts is three (3) years. See M.G.L. c. 260 sec 4.

Massachusetts has adopted the single publication rule, defining
publication as the time when a work is "first made widely available to
the public". See Abate v. Maine Antique Digest, 17 Mass. L. Rep. 288
(Mass. Super. Ct. 2004). The Abate court also explicitly extended the
single publication rule to statements published on the Internet. For a
definition of the "single publication rule," see the Statute of Limitations for Defamation section.

Jurisdiction:

Subject Area:

Michigan Defamation Law

Note: This page covers information specific to Michigan. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In Michigan, the elements of a defamation claim are:

a false and defamatory statement concerning the plaintiff;

an unprivileged publication to a third party;

fault amounting at least to negligence on the part of the publisher; and

either actionability of the statement irrespective of special
harm (defamation per se) or the existence of actual harm caused by the
publication.

These elements of a defamation claim in Michigan are similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se

Defamation per se exists if the communication is false and
imputes a criminal offense or lack of chastity. Unlike in many other
states, defamation regarding one's business or profession is not
defamation per se in Michigan. See George v. Senate Democratic Fund,
2005 WL 102717 (Mich. Ct. App. 2005); Pierson v. Ahern, 2005 WL 1685103
(Mich. Ct. App. 2005).

Public Figures and Officials

Under Michigan law, a public official is a person whose position is of such apparent
importance that the public has an independent interest in his
qualifications or performance "beyond the general public interest in
the qualification and performance of government employees." Peterfish
v. Frantz, 168 Mich. App. 43, 52 (1988). A plaintiff must prove actual
malice to recover for any subject matter that touches upon the
official's fitness for office. A public figure is "a person who by his
accomplishments, fame or mode of living, or by adopting a calling which
gives the public a legitimate interest in his activities, affairs, and
character, has become a public personage." Arber v. Sahlin, 382 Mich.
300, 305 n.4 (1969).

In Michigan, the following persons have been considered public officials or figures:

Law enforcement officials including a sheriff, a deputy
sheriff, a university police officer, a bailiff, chief probation
officer, the chief of the criminal section of the city law department;

Municipal figures including a county treasurer, a county
engineer, a municipal law director, a city council member, members of
the Board of Education; and

Owners and executives of prominent businesses.

Limited-Purpose Public Figure

A limited-purpose public figure is a person who voluntarily
injects himself or is drawn into a particular public controversy.
However, a private person is not automatically transformed into a
limited-purpose public figure merely by becoming involved in or
associated with a matter that attracts public attention. A court will
look to the nature and extent of the individual's participation in the
controversy. New Franklin Enterprises v. Sabo, 480 N.W.2d 326, 328
(Mich. App. 1991).

In Michigan, the following persons have been considered limited-purpose public figures:

The owner of a private art school was a public figure for the
limited range of issues relating to the art school, its administration,
and its problems;

A wife of a public official who injected herself into a public
controversy made her a public figure for purpose of the controversy
bolstered by the fact she was married to a public figure.

A retired schoolteacher who worked for the public school
system for 30 years, regularly attended and voiced concerns at School
Board meetings, and had his own talk show entitled "One Man's Opinion"
where he discussed matters relating to the Board.

The neutral reportage privilege
is not recognized in Michigan. The Michigan Court of Appeals declined
to adopt the privilege stating "the press is adequately protected by
the burden of proof" that the publication of a statement was made with actual malice,
that is, knowing that it is false or acting with a reckless disregard
for the statement's truth or falsity. Postill v. Booth Newspapers,
Inc., 325 N.W.2d 511, 518 (Mich. Ct. App. 1982). Michigan's Supreme
Court has made only passing reference to neutral reportage, referring
to the doctrine as "undefined." Rouch v. Enquirer & News, 487
N.W.2d 205, 208 n.3 (Mich. 1992).

Wire Service Defense

Michigan recognizes the wire service defense. See Howe v. Detroit Free Press, Inc., 555 N.W.2d 738 (Mich. App. Ct. 1996). The court in Howe
offers a nice definition of the wire service defense in Michigan: "when
a local media organization receives a wire service release, it has a
duty to read the release to ensure that the face of the story itself
does not contain any inconsistencies. The local media organization also
has a duty to refrain from publishing the news story if the news
organization knows the story is false or if the release itself contains
unexplained inconsistencies. The local media organization does not have
a duty, however, to independently verify the accuracy of the wire
service release." Howe, 555 N.W.2d at 740-41.

The publication requirement is simply the communication of defamatory matter to a third person. An exception to the publication requirement exists for slander actions in Missouri where a person who utters defamatory matters intends, or has reason to suppose, that in the ordinary course of events the matter will come to knowledge of some third person. Mauzy v. Mex. Sch. Dist., 878 F. Supp. 153, 157 (E.D. Mo. 1995), citing Neighbors v. Kirksville College, 694 S.W.2d 822, 824 (Mo. Ct. App. 1985). One who republishes defamatory facts is liable for that publication. Mortiz v. Kan. City Star Co., 258 S.W.2d 583 (Mo. 1953). There also is an important provision under section 230 of the Communications Decency Act that may protect you if a third party - not you or your employee or someone acting under your direction - posts something on your blog or website that is defamatory. We cover this protection in more detail in the section on Publishing the Statements and Content of Others.

These elements of a defamation claim in Missouri are
similar to the elements listed in the general Defamation section, with the following exceptions:

Defamation Per Se/Per Quod

The Missouri Supreme Court case of Nazeri v. Missouri Valley College, 860 S.W.2d 303 (Mo. 1993) (en banc) eliminates the defamation per se/per quod distinction. In that case, the court abandoned the classifications of defamation per se and per quod, holding that "plaintiffs need not concern themselves with whether the defamation was per se or per quod, nor with whether special damages exist, but must prove actual damages in all cases." Id. at 313.

Defamatory Meaning

By statute, it is actionable to publish falsely and maliciously, in any manner whatsoever, that any person has been guilty of fornication or adultery. Mo. Rev. Stat. § 537.110 (2011).

In 1993, a false allegation of homosexuality was held to be defamatory. Nazeri at 312. It is not clear whether this would still be actionable now.

In order to find that a publication is defamatory, it must "be unequivocally so" and the words "should be construed in their most innocent sense." Walker v. Kan. City Star Co., 406 S.W. 44, 51 (Mo. 1966). In Ampleman v. Schweppe, 972 S.W.2d 329 (Mo. Ct. App. 1998), the court stated that "if a statement is capable of two meanings (one defamatory and one nondefamatory), and can reasonably be construed in an innocent sense, the court must hold the statement nonactionable as a matter of law." Id. at 333.

Of and Concerning the Plaintiff

Even if the plaintiff is readily identifiable in a particular publication, the plaintiff cannot sue for defamation unless the libelous portion of the publication is directed at him. May v. Greater Kansas City Dental, 863 S.W.2d 941, 945 (Mo. Ct. App. 1993).

Actual Malice

In order to recover for defamation, a public official/figure is required to show that the defendant acted with actual malice. Actual malice requires a showing that the libelous statements were published with actual knowledge of falsity or in reckless disregard as to whether the statement as true or not. The Missouri Supreme Court has equated recklessness with disregard of the truth with subjective awareness of probable falsity. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication. Glover v. Herald Co. 549 S.W.2d 858, 862 (Mo. 1977) (en banc).

Application of the actual malice standard in defamation cases in Missouri is not limited to statements regarding public officials' performance of official acts. A public figure's private conduct is, in some cases, a matter of public concern. Westhouse v. Biondo, 990 S.W.2d 68 (Mo. Ct. App. 1999).

In Missouri, a private figure must show libelous statements were published by a defendant "at fault." The Missouri Supreme Court has interpreted the U.S. Supreme Court's ruling in Gertz v. Robert Welch, Inc., as stating that the requisite degree of fault in a private figure defamation case is negligence. Overcast v. Billings Mut. Ins. Co., 11 S.W. 3d 62, 70 (Mo. 2000) (en banc).

Damages

In a ruling rejecting the distinction between defamation per se and per quod (see above), the Missouri Supreme Court seems to have abandoned the doctrine of presumed damages. Nazeri v. Misssouri Valley College, 860 S.W.2d 303, 313 (Mo. 1993) (en banc). "By allowing presumed damages for certain words but precluding actual damages for other words without the additional proof of special damages, we believe this rule of the past creates unjustifiable inequities for plaintiffs and defendants alike. We hold that in defamation cases the old rules of per se and per quod do not apply and plaintiff need only to plead and prove the unified defamation elements set out in MAI [i.e., the "Missouri Approved Instructions," the standard jury instructions used in Missouri courts] 23.01(1) and 23.01(2)." Nazeri at 313. See also Kenney v. Wal-Mart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003); Bauer v. Ribaudo, 975 S.W.2d 180, 182-83 (Mo. Ct. App. 1997).

Recent Missouri legislation says that punitive damages in any tort case may not exceed $500,000 or five times the net amount of any judgement awarded to the plaintiff against the defendant, whichever is greater. Mo. Rev. Stat. § 510.265 (2011).

The Missouri Supreme Court has held that a defamation plaintiff must prove impairment to reputation in order to recover any damages for defamation and that emotional distress alone will not suffice. Kenney v. Walmart Stores, Inc., 100 S.W.3d 809, 814 (Mo. 2003).

Now falsity must be proven by the plaintiff, at least in cases where the defendant is a member of the media. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986). "Under the controlling constiutional standards, public officials, public figures and private persons using media defendants [for libel] must establish that the defendant published a false statement of fact." Anton v. St. Louis Suburban Newspapers, Inc., 598 S.W.2d 493, 498 (Mo. Ct. App. 1980).

Missouri recognizes that a newspaper has the right to reply upon and to republish information obtained from "reputable and properly-regarded-as reliable news services" where (1) the matters republished are of public significance and occur many miles away and (2) the reporter did not act with actual malice. Walker v. Pulitzer Publ'g Co., 271 F.Supp. 364 (E.D. Mo. 1967), aff'd, 394 F.2d 800 (8th Cir. 1968).

Fair Reportage Privilege

Missouri has adopted this privilege in the exact language provided in the Restatement of Torts (Second) § 611:

The publication of defamatory matter concerning another in a report or an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgement of the occurrence reported.

"Actual malice" is irrelevant under the Section 611 privilege. The privilege fails only when the report is not a fair and accurate account of the proceedings. Williams v. Pulitzer Broad. Co., 706 S.W.2d 508, 511 (Mo. Ct. App. 1986).

Opinion

The Missouri Supreme Court, considering the U.S. Supreme Court's holding in Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990),rejected a blanket defense for protected opinion and established instead the following test:

"The test to be applied to ostensible 'opinion' is whether a reasonable
factfinder could conclude that the statement implies an assertion of
objective fact. ...The issue of falsity relates to the defamatory facts
implied by a statement -- in other words, whether the underlying
statement about the plaintiff is demonstrably false... But neither
'imaginative expression' nor 'rhetorical hyperbole' is actionable as
defamation."

Nazeri at 314 (citations omitted). Nevertheless, a Missouri appellate court has since held that generally any statement preceded by a phrase such as "it is my position" or "it is my belief" or other cautionary phrases are, as a matter of law, opinion. Pape v. Reither, 918 S.W.2d 376, 380 (Mo. Ct. App. 1996). "Put plainly, it is impossible to interpret statements preceded by such cautionary lanugage as positing a verifiable proposition, and verifiability is the crux of the fact/opinion distinction in defamation law." Pape at 380-81. The Pape court also held that "[a] statement must be verifiable at the time it is issued in order to be one of fact." Id. at 381.

In State ex. rel. Diehl v. Kintz, 162 S.W.3d 152 (Mo. Ct. App. 2005), the Missouri Court of Appeals, while recognizing that the U.S. Supreme Court "has rejected the notion that there is a wholesale defamation exception for anything that might be labeled opinion" as a matter of federal constitutional law, held that "a statement may only suggest to the ordinary reader that the defendant disagrees with the plaintiff's conduct and used pejorative statements or vituperative language to express this disapproval. ... 'Courts should also examine the statements themselves to determine whether they are too imprecise.'" Id. at 155, quoting Henry v. Halliburton, 690 S.W.2d 775, 789 (Mo. 1985) (en banc).

See the general page on fair comment and opinion for details on the standards and terminology mentioned in this subsection.

There is also an "intra-corporate immunity" rule in Missouri where "communications between officers or employees of a corporation in the regular course of business, or between different offices of the same corporation" are not publications for defamation purposes. Hellesen v. Knaus Truck Lines, Inc., 370 S.W.2d 341, 344 (Mo. 1963); see also Perez v. Boatmen's Nat'l Bank of St. Louis, 788 S.W.2d 296, 300 (Mo. Ct. App. 1990). Communication by a corporation's officers or supervisors to non-supervisory employees constitute a publication for purposes of a defamation. Snodgrass v. Headco Indus. Inc., 640 S.W.2d 147 (Mo. Ct. App. 1982). However the intra-corporate immunity rule does not appear to be applicable to communications outside of the corporate context, for example partnerships.

Jurisdiction:

Subject Area:

New Jersey Defamation Law

Note: This page covers information specific to New Jersey. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In New Jersey, the elements of a defamation claim are:

a false statement about the plaintiff;

communication of the statement to a third party;

fault of the defendant amounting at least to negligence; and

damages suffered by the plaintiff.

See DeAngelis v. Hill, 847 A.2d 1261, 1267-68 (N.J. 2004). These
elements of a defamation claim in New Jersey are similar to the elements
listed in the general Defamation Law section, with the following exceptions:

Public and Private Figures

New Jersey follows the U.S. Supreme Court's decision in Rosenblatt v. Baer,
383 U.S. 75 (1966), in determining who is a public official for
purposes of defamation law. Under this test, the public official
designation applies to "those among the hierarchy of government
employees who have, or appear to the public to have, substantial
responsibility for or control over the conduct of governmental
affairs.” Costello v. Ocean County Observer, 643 A.2d 1012, 1021 (N.J.
1994) (quoting Baer). Reading this test expansively, New Jersey courts
have consistently held that police officers are public officials. Other
examples of public officials include a former school district athletic
director, a tax assessor, a building inspector, an incumbent mayor.

New Jersey courts have a two-part test for deciding who is a
limited-purpose public figure. First, the defamatory statement must
involve a public controversy, namely a real dispute with an outcome
that “affects the general public or some segment of it.” See McDowell
v. Paiewonsky, 769 F.2d 942, 948 (3d Cir. 1985). Second, the court must
consider “the nature and extent of plaintiff's involvement in that
controversy.” See McDowell, 769 F.2d at 948. The following individuals,
among others, have been held to be limited-purpose public figures in
New Jersey:

A candidate for a condominium board of directors, because his
candidacy thrust him into the public eye, see Gulrajaney v. Petricha,
885 A.2d 496, 505 (N.J. Super. Ct. App. Div. 2005);

A lawyer representing the New Jersey School Boards
Association, at a time when the association's insurance problems
generated widespread and justifiable media attention, see Schwartz v.
Worrall Publ'ns, 610 A.2d 425, 428-29 (N.J. Super. Ct. App. Div. 1992);
and

Land use applicants, because their construction project were
fairly and reasonably the subject of public interest, see LoBiondo v.
Schwartz, 733 A.2d 516, 526 (N.J. Super. Ct. App. Div. 1999).

Actual Malice and Negligence

When a private figure plaintiff sues for defamation over
statements of purely private concern (i.e., not related to a matter of
legitimate public concern), New Jersey courts require the plaintiff to
show that the defendant was at least negligent. In cases involving
matters of legitimate public concern, the plaintiff must prove that the
defendant acted with actual malice, i.e., knowing that the statements
were false or recklessly disregarding their falsity. Public officials,
all-purpose public figures, and limited-purpose public figures also
must prove actual malice. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

In addition, New Jersey statutes recognize a privilege for cable
television broadcasters who complying with their obligations under any
State or Federal law, regulation, or policy requiring that broadcast
services be made available to members of the public. See N.J. Stat. Ann. § 48:5A-50.

The fair report privilege protects republishing “reports of
defamatory statements made in judicial and other official proceedings,”
in the interest that information from official proceedings be made
available to the public. Costello v. Ocean County Observer, 643 A.2d
1012, 1018 (N.J. 1994). The report need not be “exact in every
immaterial detail”, only “substantially correct.” However, a publisher
who omits exculpatory language from the official report and thereby
conveys an erroneous impression will lose the privilege.

For example, the privilege will cover the publication of
official statements regarding police investigations, issued by police
department heads and county prosecutors, unless the plaintiff can prove
actual malice in the publication. See N.J. Stat. Ann. § 2A:43-1.

Neutral Reportage Privilege

New Jersey courts do not recognize a neutral reportage
privilege. However, the extensive protections available under the New
Jersey fair report privilege are analogous to a neutral reportage
privilege. See Costello, 643 A.2d at 1028 (N.J. 1994) (O'Hern, J.,
concurring).

Statute of Limitations for Defamation

New Jersey has a one (1) year statute of limitations for defamation. See N.J.S.A. 2A:14-3.

New Jersey courts have adopted the single publication rule.
Barres v. Holt, Rinehart & Winston, Inc., 378 A.2d 1148, 1151 (N.J.
1977). For a definition of the "single publication rule," see the Statute of Limitations for Defamation section.

A New Jersey Superior Court has held that the single publication
rule applies to Internet publications. See Churchill v. State, 876 A.2d
311, 319 (N.J. Super. Ct. App .Div. 2005). If other New Jersey courts
follow the Churchill case, the statute of limitations should run from
the date of first posting, unless more than merely technical changes
are made to the website, triggering “republication.”

Jurisdiction:

Subject Area:

New York Defamation Law

Note: This page covers information specific to New York. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Under New York law, the elements of a defamation claim are:

a false statement;

published to a third party without privilege or authorization;

with fault amounting to at least negligence;

that caused special harm or defamation per se.

See Dillon v. City of New York, 261 A.D.2d 34, 38 (N.Y.A.D. 1 Dept.
1999). These elements of a defamation claim in New York are similar to the
elements discussed in the general Defamation Law section, with the following exceptions:

Public and Private Figures

New York courts rely heavily on the "vortex" notion of a
limited-purpose public figure. See James v. Gannett Co., Inc., 40
N.Y.2d 415 (N.Y. 1976) ("The essential element underlying the category
of public figures is that the publicized person has taken an
affirmative step to attract public attention."). The definition of a
limited-purpose public figure is covered in the general Actual Malice and Negligence
section of this guide under the limited-purpose public figures
discussion (scroll down to the topic heading "limited-purpose public
figures"). The guide states a person becomes a limited-purpose public
figure only if he voluntarily "draw[s] attention to himself" or uses
his position in the controversy "as a fulcrum to create public
discussion." Wolston v. Reader's Digest Association,
443 U.S. 157, 168 (1979). He must, therefore, "thrust himself into the
vortex of [the] public issue [and] engage the public's attention in an
attempt to influence its outcome." See Gertz v. Robert Welch, Inc.,
418 U.S. 323, 352 (1974). In New York, such figures have included
candidates for public office, restaurants (for the purpose of food
reviews), and religious groups.

Actual Malice and Negligence

When the plaintiff in a defamation lawsuit is a private figure and
the allegedly defamatory statements relate to a matter of legitimate
public concern, the plaintiff must prove that the defendant acted "in a
grossly irresponsible manner without due consideration for the
standards of information gathering and dissemination ordinarily
followed by responsible parties." Chapadeau v. Utica Observer-Dispatch,
38 N.Y.S.2d 196, 199 (N.Y. 1975). This standard, which is a higher bar
than negligence but lower than actual malice,
focuses on an objective evaluation of the defendant's actions rather
than looking at the defendant's state of mind at the time of
publication.

At least one court has found that the same standard of fault
applies to citizen or non-media defendants where the allegedly
defamatory statements relate to a matter of legitimate public concern.
See Pollnow v. Poughkeepsie Newspapers, 107 A.D.2d 10 (N.Y.A.D. 2d
Dep't 1985), aff'd 67 N.Y.2d 778 (N.Y. 1986) (no liability for letter
to the editor unless writer was "grossly irresponsible").

In cases brought by private figure plaintiffs involving
statements not related to a matter of legitimate public concern, New
York courts apply a negligence standard.

To determine whether statements relate to a matter of legitimate
public concern, New York courts view the allegedly defamatory
statements in context of the writing as a whole. They ask whether the
matter can be "fairly considered as relating to any matter of
political, social, or other concern of the community" and distinguish
this broad category of newsworthy matters from "mere gossip and
prurient interest." Overall, the test is deferential to the reporter's
judgment about whether a matter is of legitimate public concern. See
Huggins v. Moore, 94 N.Y.2d 296, 302-03 (N.Y. 1999).

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. The fair report privilege is the exception to this rule; it cannot be defeated by a showing of actual malice.

Fair Report Privilege

New York has codified the fair report privilege into law. N.Y. Civ. Rights § 74.
Under the statute, speakers cannot be held liable for giving a "fair
and true report of any judicial proceeding, legislative proceeding or
other official proceeding." A report is "fair and true" if it is
substantially accurate.

Wire Service Defense

New York recognizes a privilege that is similar to the wire service defense
but explicitly extends protection to content originating from other
sources in addition to wire services. Jewell v. NYP Holdings, Inc., 23
F.Supp.2d 348 (S.D.N.Y. 1998). Under the privilege, courts will not
hold republishers liable for reproducing defamatory content unless the
republisher had or should have had "substantial reasons" to question
the content's accuracy or the original speaker's good faith and
reporting practices. See Karaduman v. Newsday, Inc., 51 N.Y.2d 531
(N.Y. 1980). Because courts applying these principles have dealt
exclusively with traditional media entities such as newspapers and book
publishers -- both as publishers and republishers -- it is not clear
whether this privilege would apply to online speakers such as bloggers
and citizen media websites.

Neutral Reportage Privilege

The status of the neutral reportage privilege
in New York is not settled. The New York Court of Appeals has neither
recognized nor rejected the privilege, and the lower courts disagree on
whether it is part of New York law.

Statute of Limitations for Defamation

New York has adopted the single publication rule. See Gregoire
v. G.P. Putnam's Sons, 298 N.Y. 119 (1948). For a definition of the
"single publication rule," see the Statute of Limitations for Defamation section.

The single publication rule applies to the Internet in New York,
with the statute of limitations running from the time the defamatory
content first appears online. "Republication" of the allegedly
defamatory content will restart the statute of limitations. A
"republication" occurs upon "a separate aggregate publication from the
original, on a different occasion, which is not merely 'a delayed
circulation of the original edition.'" Firth v. State,
775 N.E.2d 463, 466 (N.Y. 2002). The New York Court of appeals has
indicated that altering the allegedly defamatory content may trigger
republication, and a lower court has held that moving web content to a
different web address triggered republication. See Firth v. State, 306
A.D.2d 666 (N.Y. App. Div. 2003).

Jurisdiction:

Subject Area:

North Carolina Defamation Law

Note: This page covers information specific to North Carolina. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

The elements of a defamation claim in North Carolina are essentially similar to the elements discussed in the general Defamation Law section, with the following exceptions and clarifications:

Defamation Per Se

North Carolina has a broad definition of libel per se.
This term refers to statements so egregious that they will always be
considered defamatory and are assumed to harm the plaintiff's
reputation, without further need to prove that harm. In North Carolina,
a statement that does any of the following things amounts to libel per
se:

charges that a person has committed an infamous crime;

charges a person with having an infectious disease;

tends to impeach a person in that person's trade or profession; or

otherwise tends to subject one to ridicule, contempt, or disgrace.

This last category of libel per se is quite broad and is not recognized by most other states.

Actual Malice and Negligence

In North Carolina, a private figure plaintiff bringing a
defamation lawsuit must prove that the defendant was at least negligent
with respect to the truth or falsity of the allegedly defamatory
statements. Public officials, all-purpose public figures, and
limited-purpose public figures must prove that the defendant acted with
actual malice, i.e., knowing that the statements were false or
recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Most of the privileges and defenses to defamation can be
defeated if the plaintiff proves that the defendant acted with actual
malice. This does not apply to immunity under section 230 of the
Communications Decency Act. It is not clear whether actual malice
defeats the fair report privilege in North Carolina.

Fair Report Privilege

In North Carolina, the fair report privilege protects accurate reports of government proceedings and public records. Among other things, the privilege applies to court proceedings and information contained in court documents. It also extends to reports of arrests and the charges upon which the arrests were based. See LaComb v. Jacksonville Daily News, 543 S.E.2d 219, 221 (N.C. Ct. App. 2001). To take advantage of the privilege, your report must be a "substantially accurate acount." It is not clear whether a plaintiff can defeat the fair report privilege by proving that the defendant acted with actual malice.

Statute of Limitations for Defamation

The CMLP has identified no North Carolina cases addressing
whether the state follows the single publication rule, either online or
off. For a definition of the "single publication rule," see the Statute of Limitations for Defamation section. If you are aware of
any North Carolina cases that acknowledge the single publication rule
in the Internet context, please notify us.

Jurisdiction:

Subject Area:

Ohio Defamation Law

Note: This page covers information specific to Ohio. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

The elements of a defamation claim in Ohio are essentially similar to the elements discussed in the general Defamation Law section, with the following exceptions and clarifications:

Defamation Per Se

Ohio recognizes that certain statements constitute defamation per se.
These statements are so egregious that they will always be considered
defamatory and are assumed to harm the plaintiff's reputation, without
further need to prove that harm. Ohio has a broad definition of
defamation per se. In contrast to most states, which limit defamation
per se to three or four specific categories of statements, Ohio defines
the term as any statement that "reflects upon the character of [the
plaintiff] by bringing him into ridicule, hatred, or contempt, or
affects him injuriously in his trade or profession.” Becker v. Toulmin,
138 N.E.2d 391, 395 (Ohio 1956). A statement can constitute defamation
per se only if it conveys its negative meaning directly, not by
innuendo or implication.

Public and Private Figures

A public official is a government employee or official whose
position has such apparent importance that the public has an
independent interest in the qualifications and performance of the
person who holds it, beyond the general public interest in the
qualifications and performance of all government employees. See Scott
v. News-Herald, 496 N.E.2d 699, 702 (Ohio 1986). Ohio courts have found
law enforcement officials to be public officials, including a sheriff,
a deputy sheriff, a university police officer, a bailiff, a chief
probation officer, and the chief of the criminal section of a city law
department. Other examples of public officials include a county
treasurer, a county engineer, a municipal law director, a city council
member, and members of the Board of Education.

In defining all-purpose and limited-purpose public figures, Ohio courts follow Gertz v. Robert Welch, Inc.,
418 U.S. 323, 345 (1972). All-purpose public figures are those who have
achieved pervasive fame and influence. Examples include celebrities,
professional athletes, and similarly famous people.

A limited-purpose public figure is someone who injects himself
or herself into a particular public controversy. The determination of
whether a particular individual qualifies as a limited-purpose public
figure depends on the (1) plaintiff's access to the media; and (2) the
extent to which the plaintiff, by virtue of his or her position in the
community or involvement in a matter of public concern, can be said to
invite public comment or attention. Examples of individuals and
organizations deemed limited-purpose public figures by Ohio courts
include:

the owner of a private art school (for purposes of discussing its administration);

a retired schoolteacher who worked for the public school
system for 30 years, regularly attended and voiced concerns at school
board meetings, and had his own talk show entitled "One Man's Opinion"
where he discussed matters relating to the board (for purposes of
discussing his statements and conduct at a board meeting); and

a restaurant and its owner (for purposes of review of the restaurant).

Actual Malice and Negligence

In defamation suits brought by private figure plaintiffs, Ohio
courts require a plaintiff to prove by clear and convincing evidence
that the defendant "failed to act reasonably in attempting to discover
the truth or falsity or defamatory character of the publication."
Landsdowne v. Beacon Journal Publ'g, 512 N.E.2d 979, 984 (Ohio 1987).
The Ohio test is similar to an ordinary negligence standard, but the
"clear and convincing evidence" standard requires the plaintiff to put
forward strong evidence of negligence.

Public officials, all-purpose public figures, and
limited-purpose public figures must prove that the defendant acted with
actual malice, i.e., knowing that the statements were false or
recklessly disregarding their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Ohio Rev. Code § 2317.04
provides a privilege to accurate reports of state and local legislative
and executive proceedings, as well reports reproducing the contents of
any bill, ordinance, report, resolution, bulletin, notice, petition, or
other document presented, filed, or issued in such a proceeding. A
plaintiff can defeat this privilege by showing that the defendant acted
with actual malice.

Ohio Rev. Code § 2317.05
provides a privilege to accurate reports of the return of any
indictment, the issuance of a warrant, the arrest of any person accused
of a crime, and the filing of any affidavit, pleading, or other
document in a civil or criminal court case, as well as fair an
impartial reports of the contents of these documents. A plaintiff can
defeat this privilege by showing that the defendant (1) acted with actual malice,
(2) failed to publish a reasonable written explanation or contradiction
offered by the plaintiff, or (3) failed to publish, upon request of the
plaintiff, the subsequent determination the lawsuit or case.

To take advantage of the fair report privilege, you do not need to
quote the official record verbatim, but it must be a substantially
accurate report, which means the report conveys the essence of the
official record.

Jurisdiction:

Subject Area:

Pennsylvania Defamation Law

Note: This page covers information specific to Pennsylvania. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

Although Pennsylvania courts invoke a complicated statutory definition found in 42 Pa. Cons. Stat. §§ 8341-8345 (see especially § 8343), in practice the elements of a defamation claim are similar to the elements discussed in the general Defamation Law
section. However, Pennsylvania law has some characteristics that differ
slightly from the general section's description of defamation law:

Public and Private Figures

Pennsylvania defines when a plaintiff is a public official,
all-purpose public figure, and limited-purpose public figure in
more-or-less the way described in the Actual Malice and Negligence
section. Some examples of individuals deemed to be public officials or
all-purpose public figures by Pennsylvania courts include:

a locally renowned, Philadelphia-based singer who posed for as
a centerfold and was extensively interviewed in an accompanying article
in Playboy magazine;

a licensed architect and civil engineer who participated in
numerous public building projects that had been the subject of public
controversy; and

the president of an art foundation at the time the
foundation's paintings went on a widely publicized international art
exhibition tour.

Some examples of individuals deemed to be private figures by Pennsylvania courts include:

a person who allegedly misrepresented himself as a member of the board of a non-profit organization;

a dentist who received public reimbursement from state funds for dental work performed on lower-income patients; and

an individual planning to host of a private party when a neighbor called a newspaper to complain about the party.

Actual Malice and Negligence

In Pennsylvania, a private figure plaintiff bringing a
defamation lawsuit must prove that the defendant was at least negligent
with respect to the truth or falsity of the allegedly defamatory
statements. Public officials, all-purpose public figures, and
limited-purpose public figures must prove that the defendant acted with
actual malice, i.e., knowing that the statements were false or
recklessly disregarding their falsity. See the general page on actual malice and negligence for details on these standards.

Most of the privileges and defenses to defamation can be
defeated if the plaintiff proves that the defendant acted with actual
malice. This does not apply to immunity under section 230 of the
Communications Decency Act.

The Fair Report Privilege

Pennsylvania recognizes the fair report privilege.
The privilege applies to reports and summaries of information contained
in government reports or discussed in government proceedings. This
includes court proceedings, court records, and open meetings. It also applies to government press releases, including police press releases.

The privilege applies to "fair and accurate" accounts of the
underlying documents or proceedings. A report is fair and accurate if
it is "substantially accurate." A plaintiff may overcome the fair
report privilege by showing that the defendant acted with actual malice.

The CMLP could not locate any cases in Pennsylvania that apply
the single publication rule in the context of a statement published on
the Internet. If you are aware of any Pennsylvania cases that
acknowledge the single publication rule in the Internet context, please
notify us.

Jurisdiction:

Subject Area:

Texas Defamation Law

Note: This page covers information specific to Texas. For general information concerning defamation, see the Defamation Law section of this guide.

Elements of Defamation

In Texas, the elements of a defamation claim are

publication of a statement;

that was defamatory concerning the plaintiff;

with the requisite degree of fault.

WFAA-TV, Inc. v. McLemore,
978 S.W.2d 568, 571 (Tex. 1998). The elements of a defamation claim are
for the most part similar to the elements discussed in the general Defamation Law section, with the following clarifications:

Public and Private Figures

Texas law defines when a plaintiff is a public official,
all-purpose public figure, and limited-purpose public figure in
more-or-less the way described in the general Actual Malice and Negligence section. Some examples of individuals deemed to be public officials or all-purpose public figures by Texas courts include:

law enforcement officers including a county sheriff, a deputy
sheriff, and an undercover narcotics agent with the Texas Department of
Public Safety;

a Texas Child Protective Services specialist in charge of
investigating cases of alleged child abuse and neglect and providing
services for the children involved;

an assistant regional administrator of a branch office of the United States Securities and Exchange Commission; and

a court-appointed child psychologist in a child custody case who had the authority to determine visitation rights.

a candidate for city counsel, because he thrust himself into the middle of a public controversy;

a former special counsel for a court of inquiry investigating alleged irregularities in county fund management;

a zoologist who actively participated in a controversy involving his work with kinkajous by appearing on television, giving interviews to magazines, and orchestrating a letter-writing campaign;

a broadcast news reporter who hosted a segment that regularly appeared on television;

an abortion clinic protester who regularly appeared on a public street near the entrance to the clinic;

a group of hackers called Legion of Doom who sought publicity in a controversy over computer security.

Actual Malice and Negligence

In Texas, a private figure plaintiff bringing a defamation
lawsuit must prove that the defendant was at least negligent with
respect to the truth or falsity of the allegedly defamatory statement.
Public officials, all-purpose public figures, and limited-purpose
public figures must prove that the defendant acted with actual malice,
i.e., knowing that the statement was false or recklessly disregarding
its falsity. See the general page on actual malice and negligence for details on these standards.

Most of the privileges and defenses to defamation can be defeated if the plaintiff proves that the defendant acted with actual malice. This does not apply to immunity under section 230 of the Communications Decency Act.

Fair Report Privilege

In Texas, the fair report privilege protects a "fair, true, and impartial account" of various official proceedings and meetings, including:

court proceedings, including reports of the contents of pleadings filed with the court;

executive or legislative proceedings, including proceedings of legislative committees;

proceedings before a managing board of an educational or charity institution supported from public funds;

proceedings of the governing body of a city or town, of a county commissioners court, or of a public school board; and

public meetings on matters of public concern.

One court has applied the fair report privilege to reporting based
on a police department press release. See Freedom Commc'n v. Sotelo,
2006 WL 1644602 (Tex. App. June 15, 2006).

A plaintiff may overcome the fair report privilege by showing that the defendant acted with actual malice.

Neutral Reportage Privilege

The Texas Supreme Court has neither recognized or rejected the neutral reportage privilege.
Many lower courts have recognized a similar privilege, without calling
it "neutral reportage." Under the rule set forth in these cases, when
the media reports on an accusation made by a third party, it can defend
itself by showing that the accusation was in fact made and under
investigation, rather than by showing that the underlying allegation
was substantially true. See Dolcefino v. Turner, 987 S.W.2d 100, 109
(Tex. App. 1998). This privilege extends to investigations and
accusations made by government and non-government actors and
organizations. Proof of actual malice defeats this privilege.

Jurisdiction:

Subject Area:

Virginia Defamation Law

Note: This page covers information specific to Virginia. For general information concerning defamation, see the general Defamation Law section of this guide.

Elements of Defamation

In Virginia, the elements of a defamation claim are

publication
of

an actionable statement with

the requisite fault on the part of the defendant.

To be “actionable,” the statement must be a false statement of fact that harms the
plaintiff's reputation in the community or deters other persons from
associating with him or her. These elements of a defamation
claim in Virginia are similar to the elements discussed in the general Defamation Law section, with the following exceptions:

Defamation Per Se

Virginia recognizes that certain statements constitute defamation per se. These statements are so egregious that they will always be considered
defamatory and are assumed to harm the plaintiff's reputation, without
further need to prove that harm. In Virginia, a statement that does any
of the following things amounts to defamation per se:

attributes to the plaintiff the commission of some criminal
offense involving moral turpitude, for which the party, if the charge
is true, may be indicted and punished;

indicates that the plaintiff is infected with a contagious disease;

attributes to the plaintiff unfitness to perform the duties
of an office or employment of profit, or lack of integrity in the
discharge of the duties of such an office or employment; or

The Virginia courts generally require a high level of public
activity before a plaintiff becomes a limited-purpose public figure.
The definition of a limited-purpose public figure is covered in the
general Actual Malice and Negligence
section of this guide under the limited-purpose public figures
discussion (scroll down to the topic heading "limited-purpose public
figures"). In Virginia, courts look at the following factors in
determining whether a plaintiff is a limited-purpose public figure:

whether the plaintiff had access to channels of effective communication;

whether the plaintiff voluntarily assumed a role of special prominence in a public controversy;

whether the plaintiff sought to influence the resolution or outcome of the controversy;

whether the controversy existed prior to the publication of the defamatory statements; and

whether the plaintiff retained public figure status at the time of the alleged defamation.

In Virginia, the courts have found the following individuals, among others, to be limited-purpose public figures:

the president of the two charitable organizations because the
charities thrust themselves into the public eye through fund raising
awareness efforts (Chapin v. Knight‑Ridder, Inc.);

a widely-published scientist and self-styled whistleblower who
claimed the National Cancer Institute (NCI) had reversed its official
position on whether a pesticide was carcinogenic (Reuber v. Food Chem. News);

A dolphin scientist who attempted to sell his dolphin
technology to military and nonmilitary industries and who sought to
influence the outcome of a public controversy through brochures and
public statements (Fitzgerald v. Penthouse).

On the other hand, the courts have found the following individuals and organizations, among others, to be private figures:

a university professor who spoke twice in public hearings concerning a public controversy (Fleming v. Moore);

a public school English teacher and short-term, acting
department head whose students complained of her poor teaching
performance to parents and the school principal (Richmond Newspapers v. Lipscomb);

a company engaged in archaeological research for both
government and private entities that was not generally known to the
community and did not seek press regarding a public controversy (Arctic Co., Ltd. v. Loudoun Times Mirror).

Public officials, all-purpose public figures, and limited-purpose
public figures must prove that the defendant acted with actual malice,
i.e., knowing that the statements were false or recklessly disregarding
their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

In Virginia, the precise scope of the fair report privilege
is not clear because all of the cases interpreting it have involved
reports of court proceedings. The privilege covers reports of court
proceedings, including matters stated in court documents, when the
report is made in good faith and substantially accurate.

In Alexandria Gazette Corp. v. West, 93 S.E.2d 274, 279 (Va.
1956), the Virginia Supreme Court stated that "[t]he publication of
public records to which everyone has a right of access is privileged,
if the publication is a fair and substantially correct statement of the
transcript of the record." Because the case involved court proceedings
not other government records, this statement would not necessarily bind
later courts, but it is likely that Virginia courts would apply the
privilege to government records open to the public. In that case, you
would be privileged to report on information contained in marriage and
divorce records, birth and death records, and property records, among
other things, in addition to matters reflected in court records and
proceedings.

A few federal courts interpreting Virginia law have applied the
fair report privilege to "governmental actions," like the unofficial
public remarks of a member of Congress, Chapin, 993 F.2d at 1097, and an official letter of
reprimand leaked to the press, Reuber, 925 F.2d at 713.

Statute of Limitations for Defamation

The Virginia Supreme Court has not ruled on whether the single
publication rule applies in the state, although several Virginia circuit courts have cited the single publication rule favorably. See Armstrong v. Bank of Am., 61 Va. Cir. 131, 132 (2003) (noting circuit courts in Fairfax and Richmond, Virginia, that have cited the single publication rule favorably). For a definition of the "single
publication rule," see the Statute of Limitations for Defamation section. One federal appeals
court applying Virginia law upheld application of the single
publication rule, reasoning that a great majority of states now follow
it. Morrissey v. William Morrow & Co., Inc., 739 F.2d 962, 967 (4th
Cir. 1984).

The CMLP could not locate any cases in Virginia that apply the
single publication rule in the context of a statement published on the
Internet. If you are aware of any Virginia cases that acknowledge the
single publication rule in the Internet context, please notify us.

Jurisdiction:

Subject Area:

Washington Defamation Law

Note: This page covers information specific to Washington. For general information concerning defamation, see the general Defamation Law section of this guide.

Elements of Defamation

According to Washington law, defamation claims have four elements:

falsity;

an unprivileged communication;

fault on the part of the defendant; and

damages.

These elements of a defamation claim in Washington are for the most part
similar to the elements listed in the general Defamation Law
section. However, in Washington, the elements of a defamation claim
have two characteristics that differ slightly from the general
section's description of defamation law.

Public and Private Figures

Washington courts rely heavily on the "vortex" notion of a
limited-purpose public figure. See Camer v. Seattle Post-Intelligencer,
723 P.2d 863 (Wash. 1986). The definition of a limited-purpose public
figure is covered in the general Actual Malice and Negligence
section of this guide under the limited-purpose public figures
discussion (scroll down to the topic heading "limited-purpose public
figures"). The guide states a person becomes a limited-purpose public
figure only if he voluntarily "draw[s] attention to himself" or uses
his position in the controversy "as a fulcrum to create public
discussion." Wolston v. Reader's Digest Association,
443 U.S. 157, 168 (1979). He must, therefore, "thrust himself into the
vortex of [the] public issue [and] engage the public's attention in an
attempt to influence its outcome." See Gertz v. Robert Welch, Inc.,
418 U.S. 323, 352 (1974).

For example, a businessman who was involved
in a commercial real-estate development project was considered a
limited-purpose public figure in a defamation lawsuit against a
newspaper which had printed articles about the development project that
stated he was a tax felon. The court reasoned the businessman was a
limited-purpose public figure because he “thrust himself into the
vortex of [the] public issue” when he sent letters to residents of the
real-estate development area telling the residents about the
development project and advising them he would be updating them on its
progress. Clardy v. Cowles Pub. Co., 912 P.2d 1078 (Wash. Ct. App.
1986).

Public officials, all-purpose public figures, and limited-purpose
public figures must prove that the defendant acted with actual malice,
i.e., knowing that the statements were false or recklessly disregarding
their falsity. See the general page on actual malice and negligence for details on the standards and terminology mentioned in this subsection.

Failure to investigate is not sufficient to prove actual malice. You
should be aware that when you do investigate and facts come to light
that either do not support or rebut your factual assertion, the jury
may infer recklessness and thus find actual malice if you go ahead and
publish the information and it turns out to be false and defamatory.
See Herron v. KING Broad. Co., 776 P.2d 98, 106 (Wash. App. Ct. 1989).

Most of the privileges and defenses to defamation can be
defeated if the plaintiff proves that the defendant acted with actual
malice. The fair report privilege
is the exception to this rule; it cannot be defeated by a showing of
actual malice. Alpine Indus. Computers, Inc. v. Cowles Pub. Co., 57
P.3d 1178, 1188 (Wash. App. Ct. 2002).

The Washington Supreme Court noted the existence of the neutral
reportage doctrine and that there was a "modern" trend towards
rejecting it, but declined to rule on the privilege as neither party
had raised the issue. Herron v. Tribune Publ'g Co., 736 P.2d 249, 260
(Wash. 1987).

Statute of Limitations for Defamation

The Washington Supreme Court has adopted the single publication
rule. Herron v. KING Broad. Co., 746 P.2d 295 (Wash. 1987). For a
definition of the "single publication rule," see the Statute of Limitations for Defamation section.

The CMLP could not locate any cases in Washington that apply the
single publication rule in the context of a statement published on the
Internet. If
you are aware of any Washington cases that acknowledge the single publication rule
in the Internet context, please notify us.